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THE LIBRARY OF THE
UNIVERSITY OF
NORTH CAROLINA
AT CHAPEL HILL
THE COLLECTION OF
NORTH CAROLINIANA
C3U0
N87a
1979/80
UNIVERSITY OF N.C. AT CHAPEL HILL
lliilllilillllliliii
00033947427
FOR USE ONLY IN
NORTH CAROLINA COLLECTION
NORTH CAROLINA
ATTORNEY GENERAL REPORTS
Volume 49
Number 1
FUS L. EDMISTEN
TORNEY General
\9 N.C.A.G. No. 1 Pages 1 through 90
NORTH CAROLINA
ATTORNEY GENERAL
REPORTS
Opinions of the Attorney General
July 1, 1979 through December 31, 1979
MAILING ADDRESS:
Post Office Box 629
Raleigh, North Carolina 27602
Digitized by tine Internet Arciiive
in 2011 witii funding from
Ensuring Democracy tiirough Digital Access (NC-LSTA)
http://www.archive.org/details/northcarolinaatt19791980
RUFUS L. EDMISTEN /^7'9A
Attorney General
James F. Bullock Andrew A. Vanore, Jr.
Senior Deputy Senior Deputy
Attorney General Attorney General
Robert Bruce White, Jr.
Senior Deputy Attorney General
Jean A. Benoy William M. Melvin
Deputy Attorney General Deputy Attorney General
Millard R. Rich, Jr.
Deputy Attorney General
Charles H. Smith Howard A. Kramer
Administrative Deputy Deputy Attorney General
Attorney General for Legal Affairs
John A. Elmore, II
Special Assistant to the Attorney General
Isaac T. Avery, III Thomas F. Moffitt
Myron C. Banks Charles J. Murray
Lester V. Chalmers, Jr. William F. O'Connell
H. Al Cole, Jr. WOliam A. Raney, Jr.
T. Buie Costen James B. Richmond
David S. Crump Jacob L. Safron
Ann Reed Dunn "
Eugene A. Smith
Herbert Lamson, Jr. Edwin M. Speas, Jr.
Richard N. League WilHam W. Webb
John R. B. Matthis
Special Deputy Attorney General
Archie W. Anders
Rudolph A. Ashton, III
Rebecca R. Bevacqua
David R. Blackwell
George W. Boylan
Jean W. Boyles
William F. Briley
Elisha H. Bunting, Jr.
Elizabeth C. Bunting
Henry H. Burgwyn
Joan H. Byers
James M. Carpenter
Christopher S. Crosby
John C. Daniel, Jr.
Thomas H. Davis, Jr.
Amos C. Dawson, III
Roy A. Giles, Jr.
Frank Graham
Richard L. Griffin
Donald W. Grimes
Guy A. Hamlin
Norma S. Harrell
Claude W. Harris
Ralf F. Haskell
Charles M. Hensey
Alan S. Hirsch
LB. Hudson, Jr.
Ben G. Irons, II
Douglas A. Johnston
Sandra M. King
George W. Lennon
James R. Lore
James E. Magner, Jr.
Daniel F. McLawhom
Nonnie F. Midgette
Mary I. Murriell
Dennis P. Myers
Robert W. Newson, III
Daniel C. Oakley
George J. Oliver
WilUam B. Ray
Robert R. Reilly
Marilyn Y. Rich
Alfred N. Salley
Jo Ann Sanford
Marvin Schiller
Tiara B. Smiley
James P. Smith
Donald W. Stephens
James L. Stuart
Jane R. Thompson
J. Gregory Wallace
Acie L. Ward
Kaye R. Webb
Robert G. Webb
Thomas B. Wood
Assistant Attorneys General
Benjamin G. Alford
Sylvia X. Allen
Christopher P. Brewer
Blackwell M. Brodgen, Jr.
Steven F. Bryant
Robert E. Cansler
Lucien Capone, III
Richard H. Carlton
Evelyn M. Coman
Francis W. Crawley
Chfton H. Duke
Fred R. Gamin
Max A. Gamer
Michael D, Gordon
Jane P. Gray
James C. GuHk
Elaine M. Guth
Richard D. Hancock
Harry H. Harkins, Jr.
Robert L. Hillman
Lemuel W. Hinton
Grayson G. Kelley
Richard L. Kucharski
Barry S. McNeill
Thomas G. Meacham
Mary E. Noonan
John C. Prather
Steven M. Shaber
WilUam L. Shenton
Michael W. Taylor
Roger B. Wall
Reginald L. Watkins
Sarah C. Young
Thomas J. Ziko
Associate Attorneys
2 July 1979
Subject: Motor Vehicle; Rules of the Road; Passing
Where There are Solid Center Lines
Requested by: Claire McNaught
Public Safety Attorney
Winston-Salem, N. C.
Question: Are solid center lines considered "markers"
under G.S. 20-1 50(e)?
Conclusion: Yes. As of July 1, 1979, soHd center lines
are "markings" under G.S. 20-1 500(e)
(Chapter 472, 1979 Session Laws, H.B.
1064).
Chapter 472 of the 1979 Session Laws (H.B. 1064) amended
G.S. 20-1 50(e) effective July 1, 1979 to read:
"The driver of a vehicle shall not overtake and pass
another on any portion of the highway which is
marked by signs, markers or markings placed by the
Department of Transportation stating or clearly
indicating that passing should not be attempted."
(Emphasis added)
The 1 979 amendment estabHshes a mandatory duty to obey highway
markings placed there by the Department of Transportation. The
North Carolina Highway Marking Manual and Supplement (1978)
Section 4A-7 outlines the pavement markings for no passing zones.
Solid yellow center lines shall indicate no passing zones at specified
intersections and on specified grades and curves.
The North Carolina Department of Transportation's Drivers
Handbook under Rules of the Road states:
"There are some places where passing is always unsafe
\ and usually against the law. Passing should not be
tried: ... 4. Whenever there is a solid yellow line in
your lane."
-1-
G.S. 20-1 50(e), as amended, prohibits passing on solid yellow center
lines as they constitute "markings placed by the Department of
Transportation stating or clearly indicating that passing should not
be attempted."
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
31 July 1979
Subject:
Requested by:
Question:
Conclusion:
Social Services; Child Support;
International Reciprocal Enforcement of
Support ObUgations
Robert H. Ward, Director
Social Services Division
Department of Human Resources
Is the Nation of West Gennany a foreign
jurisdiction which has a substantially
similar support law such that reciprocal
enforcement may be effectuated under the
North Carohna uniform reciprocal
enforcement of support act (N.C. Gen.
Stat. 52A-1 to 52A-32)?
Yes.
i
I
The Uniform Reciprocal Enforcement of Support Act (hereinafter
referred to as URESA) is codified in the North Carolina General
Statutes under Chapter 5 2A. As stated in 52A-2, the purposes of
the Chapter "are" to improve and extend by reciprocal legislation
the enforcement of duties of support and to make uniform the law
with respect thereto."
It is clear that URESA is a uniform law, reciprocal in nature and
purpose and should be liberally construed to effectuate its purpose
to accomplish and enforce the duty of a parent to support his
children. Kline v. Kline, 542 S.W.2d 499 (1976).
The purpose of URESA is to provide a prompt expeditious way
of enforcing the duty to support minor children without getting
the parties involved in complex collateral issues. Thompson v. Kite,
522 P.2d 327 (1974).
URESA was designed to provide economical and expedient means
of enforcing support orders for parties who are located in different
states or jurisdictions. Rainey v. Rainey, 536 S.W.2d 617 (1976).
From the very onset of its first adoption in the early fifties, it has
been clear that URESA has been a success and the various states
have adopted it, as well as its amendments, quite readily. The act
seeks to apply an equitable and expeditious method of dealing with
the complex problems involved. As stated in the Family Law
Reporter, 4 FLR 4017, May 2, 1978:
"URESA was a recognition by the states that problems
of child and spousal support were no longer a purely
local concern. Conventional judicial proceedings were
simply unsuitable for effective enforcement of support
orders because the absent spouse was normally outside
the jurisdiction of the dependent's state courts,
because the stay-at-home spouse could rarely afford
to track down and sue the absent spouse in another
jurisdiction, and because the federal courts have
traditionally been closed to domestic relations
actions .... URESA is an attempt to provide a
consistent statutory mechanism for the interstate, and
occasionally international, enforcement of support
decrees without forcing the person seeking support to
bring the action in the absent spouse's
jurisdiction .... Even though the typical URESA
proceeding involves an obligee in one state and an
obligor in another state, the act's mechanism may also
be used within a state on a county-to-county basis,
and is occasionally used in support enforcement cases
which cross national boundaries." (P. 4017)
-3-
In conference at the September, 1967, meeting of the National
Conference on the Uniform Reciprocal Enforcement of Support Act,
the central committee decided that it would be far more desirable
to have state action on reciprocity with foreign jurisdictions than
to seek federal involvement. Basically, this was due to the belief
that the federal government would be reluctant to delve into matters
relating to family law coupled with the additional problem as to
which federal agency could properly and effectively represent the
various states. Thus it was left to the individual states to broaden
the definition in their statutes to include foreign nations. This was
accomplished by a re-examination of the statutory definitions of
URESA.
As a result, in 1968 URESA was rewritten such that the definition
of "State" in the revised resion of URESA (called RURESA) was
expanded to include "any foreign jurisdiction in which this or a
substantially similar reciprocal law is an effect."
In 1971 , the Council of State Governments on completion of a study
of URE5A found that nineteen states had provisions in their acts
which permitted reciprocity with other nations. North Carolina was
not among those enumerated. In this regard, it is noted that North
Carolina General Statute 52A-3(8) in 1971 provided that a "State"
included "any state, territory, or possession of the United States,
and District of Columbia, in which this or a substantially similar
reciprocal law has been enacted." Therefore, it is clear that prior
to 1975, the North Carolina definition of "State" excluded anything
other than a state, territory, or possession of the United states in
which a reciprocal law was in effect.
In order to correct the limited scope of the statute and to broaden
the definition of "State", in 1975 the statute was amended so that
the definition of "State" now includes any "state, territory, or
possession of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the provinces of Canada in which
reciprocity can be effected by administrative action, and any foreign
jurisdiction in which this or a substantially similar reciprocal law
is in effect:' See N.C. Gen. Stat. 52A-3(13).
Obviously, the North Carolina Legislature intended that the statute
as amended should include foreign nations which have a substantially
similar reciprocal law within the scope of URESA. Proceeding under
the new amendments, North Carolina has recently begun to enforce
support laws with Ontario, Canada and thus support duties are now
being enforced on behalf of North Carolina residents against
residents of Ontario, and vice versa. The amendment made in 1975
clearly evidences legislative intent that the same procedure is
permissable with other foreign nations.
It should be noted that the objection to reciprocity with a foreign
nation on the grounds that international enforcement violates the
constitutional prohibition against individual states entering into
treaties with foreign governments has been considered and rejected
in at least one case. See Blouin v. Dembitz, 367 F. Supp. 415,
D.N.Y.; aff'd 489 F.2d 488 (2d Cir. 1973). In Blouin, supra, the
Court held that the statute has reciprocal effect and grants to the
foreign jurisdiction the same procedural remedies in New York
Courts as the foreign state grants to our citizens. The Court further
held that it was not a compact with a foreign government, nor did
the statute disrupt or embarrass our relations with other countries.
Pp. 417-418.
A review of the law of West Germany reveals that the support laws
there are substantially similar to those which exist in North CaroHna
and, in fact, often are broader than our own. For example, the
obhgation to support includes legitimate and illegitimate children
up until age eighteen. There is no statute of hmitations for the
establishment of paternity. The amount of support is determined
by financial need of the child and the ability of the parent to pay.
Foreign orders estabhshing paternity and/or support are recognized
and can be enforced in German courts or, if no judgment exists,
a standard URESA petition may be sent to the German authorities
who will seek to have a suitable order entered in Germany.
Enforcement is through contempt proceedings similar to those
followed in North Carolina. Thus, it is clear that the 1 a w of West
Germany is "substantially similar" to our own.
In other states which have considered this problem, notably
California and Oklahoma, we find that the term "State" is defined
in the same manner as it is in North CaroHna. Both Oklahoma and
California have determined that West Germany is a reciprocating
nation within the ambit of URESA and have granted reciprocity.
Further, the West German Child Support authorities have indicated
through correspondence that they are wilhng to reciprocate in the
handhng of support matters.
In summary, based on the history of URESA, the legislative intent
as evidenced by recent amendments and action by the various states
which have considered this problem, it is apparent that our Chapter
52A intends that any foreign nation which has a substantially similar
support law should be granted reciprocity and that West Germany
falls within the statutory definition.
Rufus L. Edmisten, Attorney General
Henry H. Burgwyn
Associate Attorney
7 August 1979
Subject
:
Requested by:
Question:
Conclusion:
Public Officers and Employees; Conflict of
Interest; Remuneration of Area Board
Member for Services Rendered to Program
Under Contract With Area Authority
Sarah T. Morrow, M.D., M.P.H., Secretary
Department of Human Resources
Is it allowable under the General Statutes
for a member of an Area Mental Health
Board to contract his services to a program
which is under contract by the Area
Authority?
Contract for remuneration for services as
described would appear to violate
G.S. 14-234.
I
This question appears to have arisen because of the specific method
of operation of group homes under the auspices of area mental
health authorities in this state. An area mental health authority is
a local governmental entity responsible for the delivery of mental
-6-
health, mental retardation, etc. services within its geographic situs,
with an area mental health board serving as its governing body. See
Article 2F, Chapter 122. In delivering some of these services, an
area authority customarily contracts with a group home which is
operated by a non-profit corporation. The situation under scrutiny
involves remuneration of an attorney who is a member of the area
mental health board, but has rendered services to the group home.
G.S. 14-234, in essence, proscribes any public official from making
any contract for his own benefit under authority of his office.
Lexington Insulation Company v. Davidson County, 243 N.C. 252
(1955). Thus, it is very clear that the attorney-board member could
not contract with the board for his own services. 40 N.C.A.G. 566
(1969). However, the present situation is somewhat more
compHcated of resolution.
This Office has previously held to be forbidden contracts between
governmental boards and a private business when a member of the
board is also a partner of the business or an officer or stockholder
in a corporation operating the business. See 44 N.C.A.G. 128 (1974);
42 N.C.A.G. 180 (1973); 42 N.C.A.G. 9 (1972); 40 N.C.A.G. 565
(1970); 40 N.C.A.G. 561 (1969); 41 N.C.A.G. 371 (1971).
Conversely, where a board member is merely an employee of the
other contracting party with no pecuniary benefit flowing directly
to him as a person, the situation falls outside the ambit of
G.S. 14-234. State v. Debnam, 196 N.C. 740 (1929); 44 N.C.A.G.
293 (1975); 40 N.C.A.G. 565 (1970). (It should be noted that one
prior member of the Supreme Court of North Carohna has had
occasion to describe even a case involving only an employee of a
contracting party as "...not altogether seemly, nor to be
commended..." State v. Weddell, 153 N.C. 587, at page 590 (1910))
The situation presented does not squarely fall into any of the factual
settings dealt with in prior opinions of this Office. However,
G.S. 122-35.43 requires the Area Authority (through its board) to
review and evaluate the area needs and programs and to develop
the annual plan for utilization of facilities and resources; this plan
must include the inventory of services to be provided and must set
forth an indication of the expenditure of all funds by the Authority.
G.S. 122-35.43. Consonant with these responsibilities, the Area
Authority must submit a budget report indicating the receipts and
-7-
expenditures for the total area mental health program.
G.S. 122-35.44.
This particular situation, which has been characterized as a typical
development if the question posed is answered in the affirmative,
points up the probability of a conflict with the statute due to normal
methods of operation. As described, what would be envisaged here
is a transfer of specific funds into a proper line item in order to
remunerate the attorney for services rendered, with the area board
approving such transfer. Thus, in application, regardless of the
absence of any improper motives on the part of any party, this
type of transaction would indisputably present the appearance of
evil and would appear to amount to a direct violation of
G.S. 14-234.
Rufus L. Edmisten, Attorney General
WiUiam F. O'Connell
Special Deputy Attorney General
9 August 1979
Subject: Education; Articles 3 2A, 32B and
§115-166 of the North Carolina General
Statutes; Home Instruction of a Child in
Lieu of Attending a Public School.
j
Requested by: Mr. George T. Rogister, Jr.
Attorney for the Wake County Board of
Education
Questions: 1. Does home instruction of a child
qualify as "a school of religious charter"
or as a "nonpubhc school" as used in
Articles 32A and 32B of Chapter 115 of
the North Carolina General Statutes?
2. Is the instruction of a child by a
tutor in a private home, instruction in a
"private school" as contemplated in the
Compulsory Attendance Law, N.C.G.S.
115-166?
Conclusions: 1. No.
2. No.
The 1979 Session of the General Assembly amended Chapter 115
of the General Statutes to add two new articles, Articles 32A and
32B, both of which have the effect of Umiting the authority of
the State Board of Education to regulate the educational programs
of nonpubhc schools providing instruction to children of compulsory
attendance age. Chapters 505 and 506 of the 1979 Session Laws.
The enactment of this legislation has stirred interest in home
instruction as an alternative to the education of children in either
public or private schools.
This Office has previously ruled that home instruction does not
suffice to meet the requirements of the Compulsory Attendance
Law, G.S. 115-166, et seq., 40 N.C.A.G. 211 (1969). George P.
Rogister, Jr., Attorney for the Wake County Board of Education,
has requested a reconsideration of this earlier opinion in light of
recently enacted Articles 32A and 32B of Chapter 115. The specific
question posed is whether home instruction is encompassed within
the meaning of the word "school" as used in those Articles.
Any discussion of the impact of legislation on education in North
CaroUna is necessarily directed by several provisions of our
Constitution. The appropriate role of the State in the education
of its citizens is clearly set forth as follows:
"The people have a right to the privilege of education,
and it is the duty of the State to guard and maintain
that right.
N.C. Const. Art. 1, §15
Religion, morality and knowledge being necessary to
good government and the happiness of mankind,
schools, libraries, and the means of education shall
forever be encouraged.
N.C. Const. Art. IX, §1
The General Assembly shall provide that every child
of appropriate age and of sufficient ability shall attend
the public schools, unless educated by other means."
N.C. Const. Art. IX, §3
There can be no doubt that the North Carolina Constitution not
only requires education to be encouraged, indeed it places on the
State the duty to ensure that the people, most particulary the
children, are educated. Any legislation which the General Assembly
approves in the area of education must be read in the light of this
constitutional mandate. "Every statute is to be considered in the
light of the Constitution, and with a view to its intent." State v.
Emery, 224 N.C. 581, 585, 31 S.E. 2d 858 (1944).
Articles 32A and 32B are similar in that they both substantially
limit the State's regulatory authority over nonpubhc schools. Article
32A deals specifically with "private church schools and schools of
religious charter," while article 32B addresses all "qualified
nonpubhc schools." In substance, the regulatory scheme is the same
for schools falling under either Article 32A or 32B.
The word "school" is not defined in either of these Articles. The
authors of the legislation set forth in Article 32B, however, did hst
the types of schools which shall qualify as "nonpublic schools".
"The provisions of this Article shall apply to nonpublic
schools which:
(a) shall be accredited by the State Board of
Education; or
(b) shall be accredited by the Southern
Association of Colleges and Schools; or
(c) shall be an active member of the North
CaroUna Association of Independent
Schools; or
(d) receives no funding from the State of
North Carolina." N.C.G.S. 115-257.8.
-10-
It may be inferred from the list set forth that the legislature intended
only established educational institutions, whether religious or
secular, to fall within this article. All schools which would be
included in subsections (a), (b), or (c) are institutions consisting
of several teachers, classes of children of varying ages, a recognized
and accountable administration, and a regular place for meeting.
Subsection (d) is a general term, following a list of specific ones.
I
"In the construction of statutes, the ejusdem generis rule is that
jwhere general words follow a designation of particular subjects or
things, the meaning of the general words will ordinarily be presumed
to be and construed as, restricted by the particular designations and
as including only things of the same kind, character and nature as
jthose specifically enumerated." State v. Fenner, 263 N.C. 694, 697,
|140 S.E. 2d 349 (1965). Accordingly, we believe the references to
ischools in subsection (d) to include only estabhshed educational
iinstitutions.
Sit was then apparently the intent of the legisture in enacting these
[Articles to include only estabhshed and identifiable institutions
within the operation of these deregulatory Articles. The intent of
the legislature is, of course, controlhng in the interpretation of
a statute. State v. Hunt, 287 N.C. 76, 213 S.E. 2d 291 (1975).
We are of the opinion that home instruction of a child cannot
reasonably be interpreted as instruction in an estabhshed and
identifiable educational institution as contemplated in Articles 32A
and 32B. This opinion is buttressed by the failure of the legislature
to specifically include home instruction in these Articles, a failure
we deem of particular significance given the constitutional duty of
the legislature to "guard and maintain" the right of the people "to
the privilege of an education."
In addition to evaluating the impact of Articles 32A and 32B upon
our earlier opinion that home instruction did not suffice to meet
the requirements of the Compulsory Attendance Law, we have
reexamined the statutory and decisional law which formed the basis
of that opinion. G.S. 115-166, the statute upon which the earlier
opinion was based, has not been amended since 1969 and there
has been no court decision in North Carolina or any other
jurisdiction which would cause us to change our earlier opinion.
Accordingly, it is and remains the opinion of this Office that a parent
does not neet the requirements of the Compulsory Attendance Law
by providing liis child with instruction in the home.
-11-
Rufus L. Edmisten, Attorney General
Edwin M. Speas, Jr.
Special Deputy Attorney General
13 August 1979
Subject:
Requested by:
Question:
Conclusion:
Health; Imposition of Fee for Issuance of
a Permit
Thomas R, Dundon
Health Director
Forsyth County
May a local board of health impose a fee
pursuant to G.S. 130-1 7(e) for the issuance
of a permit pursuant to authority delegated
by the Department of Human Resources?
No.
The Commission for Health Services is created by G.S. 143B-142
and is granted certain powers and duties to promulgate rules
concerning the pubhc health. The Commission is authorized to adopt
rules governing food and lodging establishments, sewage disposal,
public water systems, solid waste management, mass gatherings and
numerous other matters affecting the public health. The Department
of Human Resources is charged with the responsibility of enforcing
the State health laws and rules by G.S. 130-11(1). Additionally,
the Department may obtain assistance from local health departments
in enforcing the health laws and rules. G.S. 143B-142(4) provides
in part that "When directed by the Department of Human Resources,
local health departments shall enforce Commission for Health
Services' rules and regulations under the supervision of the
Department of Human Resources." The Department, pursuant to
authority contained in G.S. 130-l(d), has authorized individual
sanitarians employed by local health departments to enforce State
health laws and rules. The individual sanitarians are issued
identification cards pursuant to G.S. 128-14.
-12-
Local boards of health are also authorized to make rules and
regulations as are necessary to protect the public health. Such rules
and regulations may be more stringent than State rules where there
is an emergency or "pecuUar local condition or circumstance."
Otherwise, where there is conflict, the State rules prevail over the
local rules and regulations. An exception is provided by G.S.
;1 30-1 60(b) wherein the local health boards' rules and regulations
'governing sewage disposal may be approved by the Commission for
Health Services and thereafter enforced by the local health
departments instead of the State sewage disposal rules.
The question presented herein arises because G.S. 130-1 7(e) provides
{a procedure whereby the local health departments may impose fees
for services rendered. A fee plan must be recommended by the local
health director and then approved by the local health board and
the appropriate board or boards of county commissioners. The fee
is hmited to "services voluntarily rendered and voluntarily received,
but shall not apply where the charging of a fee for a particular
service is specfically prohibited by statute, regulation or ordinance."
An example of a prohibitory statute is G.S. 130-88, as rewritten
by Chapter 56, 1979 Session Laws, which provides in part that "The
local health department shall administer the required immunizations
without charge." Interpretation of the first phrase "voluntarily
rendered and voluntarily received" is assisted by examination of
Chapter 508, 1973 Session Laws, which substituted the present
language "but shall not apply where..." for the prior language "and
shall not apply to services required by statute, regulation, or
ordinance to be rendered or received." Under the prior language,
the local health departments were not authorized to charge a fee
for issuance of a permit, for example, for installing a septic tank
system because local health regulations required that the site be
inspected and permit be issued before the septic tank installed.
Under the present language, charging a fee is authorized because,
although the permit is still required, charging of a fee is not
specifically prohibited. Therefore, in order to give effect to the 1973
amendment, voluntariness cannot be negated merely because
inspection and issuance of a permit is required before one undertakes
a certain activity. Rather, voluntariness means that one freely applies
for a service from the local health department such as the issuance
of a permit for a septic tank system.
-13-
Although a local health department may impose a fee for services
rendered, the question remains whether the department may impose
a fee for inspections performed and permits issued at the direction
of the Department of Human Resources. Chapter 130 of the General
Statutes, which contains most of the public health laws, specifically
authorizes the collection of fees by the Department of Human
Resources for certain services but is silent concerning the remaining
services. For example, G.S. 130-166.55, enacted by Chapter 788,
1979 Session Laws, imposes certain fees for analysis of water
samples; G.S. 130-243 requires a one hundred dollar fee to
accompany an application for a mass gathering permit; G.S. 130-177
imposes a permit fee on bedding manufacturers; and G.S . 130-166
authorizes the collection of fees for the issuance of certified copies
of birth and death certificates. On the other hand, no fee is
authorized for solid waste disposal regulation (G.S. 130-166.16 et
seq.), for sewage disposal regulation (G.S. 130-160) or food and
lodging establishment inspections (G.S. 72-46 et seq.). Furthermore,
there is no general authority equivalent to G.S. 130-1 7(c) for the
Department of Human Resources to impose a fee for services
rendered. In fact. Chapter 559, 1979 Session Laws, effective May 1,
1981, states that "the legislative grant of authority to an agency
to make and promulgate rules shall not be construed as a grant
of authority to the agency to establish by rule a fee or a charge
for the rendering of any service or fulfilling of any duty to the
public, unless the statute expressly provides for the grant of
authority to establish a fee or charge for that specific authority."
"Agency" is defined to include every State department, institution
or agency but to exclude counties and cities.
Construing the foregoing Laws, it is the opinion of this Office that
the authority of the Department of Human Resources to impose
fees in matters pertaining to the public health is hmited to those
matters which are expressly authorized by statute. In enforcing State
health laws and rules, the local health departments are acting at
the direction of the Department of Human Resources, and the local
sanitarians are acting as the authorized agents of the Department.
Therefore, when local health departments are enforcing State health
laws and rules, they are subject to the same hmitations as the
Department of Human Resources and may only collect fees
specifically authorized by statute. When local health departments
^
enforce local rules and regulations, they may collect fees authorized
-14-
by the local board of health pursuant to G.S. 130-1 7(e).
j
Rufus L. Edmisten, Attorney General
! Robert R. Reilly
"- Assistant Attorney General
13 August 1979
Subject:
{Requested by:
Question:
Conclusion
:
Security Guards; Concealed Weapons
Mr. Haywood R. Starling, Director
N. C. State Bureau of Investigations
Is it lawful for a registered security guard
to carry a concealed weapon while
performing his contractual duties within
the confines of a building which is not
owned by either the security guard or the
contracting security company by which he
is employed?
No.
^. registered security guard is not permitted to carry a concealed
tveapon.
"§14-269. Carrying concealed weapons. - If anyone,
except when on his own premises, shall willfully and
intentionally carry concealed about his person any
bowie knife, dirk, dagger, sling shot, loaded cane,
brass, iron or metallic knuckles, razor, pistol, gun or
other deadly weapon of Hke-kind, he shall be guilty
of misdemeanor punishable by a fine not to exceed
five hundred dollars ($500.00), imprisonment for not
more than six months, or both. This section shah not
apply to the following persons: Officers and enlisted
personnel of the armed forces of the United States
when in discharge of their official duties as such and
acting under orders requiring to carry arms or
15-
weapons, civil officers of the United States while in
discharge of their official duties, officers and soldiers
of the militia and the State guard when called into
actual service, officers of the State, or of any county,
city, or town, charged with the execution of the laws
of the State, when acting in the discharge of their
official duties, provided, however, full-time sworn law
enforcement officers may carry a concealed weapon
when off-duty in jurisdiction where assigned if so
authorized by written regulations of the law
enforcement unit, which must be filed with the clerk
of court in the county where the law enforcement unit
is located, provided further, that no such regulation
shall permit the carrying of a concealed weapon while
the officer is consuming or under the influence of
intoxicating liquor."
The registered security guard is not in a class specifically exempted f
in G.S. §14-269 from the statutory prohibition against carrying a
concealed weapon off ones own premises. The right to carry a
concealed weapon off ones own premises is limited to officers of
the military and the various governments in the discharge of their
official duties and only with special permission and limitations when
off duty. G.S. §14-269.
The business of furnishing protection for private premises has
expanded rapidly in recent years. Employees of companies
contracted to provide security have generally replaced the company
night watchman. The security guard on duty often has no direct
contact with the owners or possessors of the premises. He simply
patrols whichever premises he is directed to by the company. These
security guards have no interest nor dominion over the land but
are mere employees furnishing security.
The General Assembly in the 1979 Session (Chapter 818) rewrote
the 1973 Private Protective Services Act as Chapter 74 C. of the
General Statutes, This act requires the hcensing of all persons, firms,
associations and corporations in any manner working in private
protective services. A security guard or night watchman is clearly
within the scope of the act. G.S. §74C-3. This act establishes a
Private Protective Services Board to set educational and training
-16-
requirements for all those in the private protective services business
and to administer the licensing of those complying.
The act sets requirements for the registration of all armed security
guards which includes the completion of a basic training course on
legal Umitations on the use of hand guns and on the powers and
authority of an armed private security officer. G.S.
§74C- 13(h)(1)(a). The registration permit authorizes the armed
security officer, "while in the performance of his duties or traveling
directly to and from work, to carry a standard .38 calibur or .32
caUbur revolver or any other firearm approved by the board and
not otherwise prohibited by law." G.S. §74C-1 3(b)(1).
The contention that a man driving in his own car on a public
highway is on his own premises as to G.S. §14-269 has been
specifically rejected. State v. Gainey, 273 N.C. 620 (1968). This
section nor any other section in the act allows a private security
officer to carry a concealed weapon while on business, traveling to
and from business, or at any other time.
In passing the Private Protective Services Act, the legislature puts
strict requirements and regulation procedures on the business of
private protective services. The act clearly spells out the firearms
rights secured through a registration permit. While this statute in
no way affects the right of citizens to openly bear arms, it does
put restrictions on those furnishing private protective services. The
statute does not authorize a security agent to exceed the statutory
limitations on the carrying of concealed weapons.
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
28 August 1979
Subject: Criminal Law and Procedure; Youthful
Offenders; Expungement; Records and
Recording Laws.
17-
Requested by: The Honorable Russell G. Walker, Jr.
District Attorney
Nineteenth-B Prosecutorial District
Question: Where a person under the age of 18 years,
^ • who has not previously or subsequently
been convicted of any offense, is charged
with several misdemeanor offenses, the
charges are consolidated for trial and
judgment, and the sentence imposed is
within the statutory limit for conviction of
a single offense, may the court order if
expungement of the record pursuant to
]
G.S. 15-223? Ij
Conclusion: ; Yes.
The clerks of superior court of the State are required by law to ;j
maintain certain records, including records of criminal actions and \
juvenile actions, G.S. 7A-180. These records are open to public i
inspection, G.S. 7A-109; 132-1, et seq., and are the property oft
the people of the State. State v. West, 293 N.C. 18, 235 S.E.2d j
150 (1977). While courts have the inherent power and duty to take
\
such action as is necessary to make their records speak the truth, i
State V. Old, 271 N.C. 341, 156 S.E.2d 756 (1967); Mallard,^
"Inherent Power of the Courts of North Carolina," 10 Wake Forest j
L. Rev. 1, 22 (1974), they are without authority to annul or expunge
an accurate record, or the records of another agency of government,
absent the authority of statute. State v. Bellar, 16 N.C.App. 339,
|
192 S.E.2d 86 (1972). In this State, a person arrested, though in
error, has no right to have the fact of his arrest removed from his
criminal record except as authorized by statute, see Session Laws f'
1979, Chapter 6\, compare Code of South Carolina of 1976 17-1-40,
though there may be, in some jurisdictions, a right to restrict access •
to or use which may be made of such erroneous arrest record, see \'
generally, 28 C.F.R., Part 20; Anno., "Right of Exonerated arrestee i
to Have Fingerprints, Photographs, or Other Criminal Identification \
or Arrest Records Expunged or Restricted," 46 A.L.R.3d 900
(1972). Court records are protected by law from wrongful
disposition or destruction, G.S. 14-76; 132-3,-9. Thus, statutes such
as G.S. 15-223, 15-223.1, 90-96 and 90-113.14 are an exception
-18-
to the general prohibition of expungement or alteration of
records which speak the truth.
G.S. 15-223 provides:
"§15-223. Expunction of records for first offenders
under the age of 18 at the time of conviction of
misdemeanor.~(a) Whenever any person who has not
yet attained the age of 1 8 years and has not previously
been convicted of any felony, or misdemeanor other
than a traffic violation, under the laws of the United
States, the laws of this State or any other state, pleads
guilty to or is guilty of a misdemeanor other than a
traffic violation, he may file a petition in the court
where he was convicted for expunction of the
misdemeanor from his criminal record. The petition
cannot be filed earlier than two years after the date
of the conviction or any period of probation,
whichever occurs later, and the petition shall contain,
but not be limited to, the following:
1
.
An affidavit by the petitioner that he has
been of good behavior for the two-year
period since the date of conviction of the
misdemeanor in question and has not
been convicted of any felony, or
misdemeanor other than a traffic
violation, under the laws of the United
States or the laws of this State or any
other state.
2. Verified affidavits of two persons who are
not related to the petitioner or to each
other by blood or marriage, that they
know the character and reputation of the
petitioner in the community in which he
lives and that his character and reputation
are good.
3. A statement that the petition is a motion
- in the cause in the case wherein the
petitioner was convicted.
-19-
4. Affidavits of the clerk of superior court,
chief of police, where appropriate, and
sheriff of the county in which the i
petitioner was convicted and, if different,
j
the county of which the petitioner is a|l
resident, showing that the petitioner has I
not been convicted of a felony or'
misdemeanor other than a traffic violation !
under the laws of this State at any time
prior to the conviction for the
misdemeanor in question or during the
two-year period following that conviction,
j
The petition shall be served upon the district attorney
of the court wherein the case was tried resulting in
conviction. The district attorney shall have 10 days
thereafter in which to file any objection thereto and
shall be duly notified as to the date of the hearing
of the petition.
The judge to whom the petition is presented is
authorized to call upon a probation officer for any;
additional investigation or verification of the
petitioner's conduct during the two-year period thatji
he deems desirable.
(b) If the court, after hearing, finds that the
petitioner had remained of good behavior and been
free of conviction of any felony or misdemeanor, otherj
than a traffic violation, for two years from the date
of the conviction of the misdemeanor in question, and
petitioner was not 18 years old at the time of the|
conviction in question, it shall order that such personj
be restored, in the contemplation of the law, to the|
status he occupied before such arrest or indictmentj
or information. No person as to whom such order hasj
been entered shall be held thereafter under anys
provision of any laws to be guilty of perjury oi
otherwise giving a false statement by reason of his
failure to recite or acknowledge such arrest, oi
indictment, information, or trial, or response to any
inquiry made of him for any purpose. |
-20-
(c) The court shall also order that the said
misdemeanor conviction be expunged from the records
of the court, and direct all law enforcement agencies
bearing record of the same to expunge their records
of the conviction. The clerk shall forward a certified
copy of the order to the sheriff, chief of police, or
other arresting agency. The sheriff, chief or head of
such other arresting agency shall then transmit the
I copy of the order with a form supplied by the State
I Bureau of Investigation to the State Bureau of
I Investigation, and the State Bureau of Investigation
shall forward the order to the Federal Bureau of
Investigation. The cost of expunging such records shall
be taxed against the petitioner.
(d) The clerk of superior court in each county in
North Carolina shall, as soon as practicable after each
term of court in his county, file with the
Administrative Office of the Courts, the names of
those persons granted a discharge under the provisions
of this section, and the Administrative Office of the
Courts shall maintain a confidential file containing the
names of persons granted conditional discharges. The
information contained in such file shall be disclosed
only to judges of the General Court of Justice of North
CaroUna for the purpose of ascertaining whether any
person charged with an offense has been previously
granted a discharge. (1973, c. 47, s. 2; c. 748; 1975,
c. 650, s. 5; 1977, c. 642, s. 1; c. 699, ss. 1, 2; 1979,
c. 431, ss. 1, 2.)"
^'his statute, under State v. Bellar, supra., gives the court the
equisite authority to expunge records of the arrest and conviction
if persons who meet the requirements thereof. Since the statute
•perates as an exception to general principles concerning the
Iteration of accurate judicial records, it would appear, under the
•rdinary principles of statutory contruction, that the statute should
-e strictly construed, see generally , 12 Strong's North CaroHna Index
d, Statutes 5, 5.2 (1978). The statute is phrased throughout in
Ingular terms. If the statute is to be strictly construed, the rule
-21-
of G.S. 12-3(1) which allows the singular to import the plural could
not be appUed.
The intention of the General Assembly as ascertained from the
language of the session law, Wright v. Casualty & Fidelity Company,
270 N.C. 577, 155 S.E.2d 100 (1967), is controlling, 12 Strong's
,
North Carolina Index 3d, Statutes 5.1 (1978). In Session Laws 1973, i
Chapter 748, 1, which is the basic act from which current G.S. ,
15-223 is derived, we find the following aid to interpretation of
the section:
"Purpose of Act. The purpose of this act is to protect
the future of youthful offenders of the law. Once a
criminal record is created by conviction of a person,
said criminal record remains a part of his past for so
long as he may live. Many youths have only one small
encounter with the law. They go on to be excellent
citizens, raise good families, but are always hindered
by having a criminal conviction on their record. This
bill is not intended to excuse those who repeat their
wrongdoing, but to somehow pardon a youthful
oversight in an isolated occurrence."
The General Assembly's statement of purpose further articulates
legislative intent as evident from the section. The statute denies the
remedy to a person who has been convicted prior or subsequent)
to the conviction he desires to have expunged. To that end, we|
think that G.S. 15-223 would be characterized by our courts as
being remedial in character, and thus subject to a rule of liberal
rather than strict construction and interpretation, 3 Sutherland
Statutory Construction, Chapter 60, (Sands ed., 4th ed. 1974).
Furthermore, the statute provides a benefit to a juvenile offender,
which some courts have held to be remedial and subject to rules |
of hberal construction. In re Aline D., 14 Cal.3d 557, 121 Cal. Rptr.
j
816, 536 P.2d 65 (1975); Briones v. Juvenile Court for City and}
County of Denver, 534 P.2d 624 (Colo. 1975).
Further evidence of the remedial intent of the General Assembly
may be inferred from its enactment in the 1 979 session of Chapter
61. Chapter 61 of the 1979 Session Laws 1 (effective 20 February
1979) establishes a new section to be codified as G.S. 15-223.1.
-22-
Under that section, a person has not yet attained the age of 18
years, and who has not previously been convicted of any offense
other than a traffic violation may have expunged the record of his
arrest for any felony or misdemeanor offense if the charge is
dismissed or if he is acquitted. UnUke G.S. 15-223, there is no
limitation on the availability of the remedy under the new statute
to a single use. The General Assembly's mercy for the youthful
offender is therefore apparent.
The rules governing the disposition of multiple charges in a single
sentence are well established, see generally 4 Strong's North Carolina
Index 3d, Criminal Law 92, et seq. (1976). The joinder of offenses
for trial or disposition is addressed to the sound discretion of the
court, State v. Slade, 291 N.C. 275, 229 S.E.2d 92 (1976); State
V. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). The verdict
or plea of guilty to consoUdated charges authorizes the imposition
of separate sentences on each charge, 4 Strong's North Carolina
Index 3d, Criminal Law 137.1 (1976), but the sentence cannot
exceed the maximum authorized by statute. Id. Where multiple
charges are consoUdated for sentence, a sentence in excess of the
maximum authorized for a single offense will not be sustained on
the theory of an intent to impose consecutive sentences, State v.
Austin, 241 N.C. 548, 85 S.E.2d 924 (1955). Therefore, if multiple
misdemeanor charges against a youthful offender are consolidated
for judgment and sentence, the sentence imposed cannot exceed the
authorized sentence for conviction of a single offense. The
sentencing judge, by consolidating the charges for judgment has
indicated his intent to treat the charges as a single offense for the
ipurpose of sentencing, even though the judgment may recite pleas
of guilty to or conviction of more than a single offense.
Your inquiry is directed to a case in which three charges were
consoUdated for disposition and the sentence imposed within the
statutory Umit for a single offense. In those circumstances and in
the Ught of the purposes of G.S. 15-223, we think the convictions
should be treated as a single misdemeanor for the purpose of
expungment. It would be ironic and unjust that one youthful
defendant could plead guilty to a single charge, have two other
:jharges dismissed, receive sentence and be entitled to expungement
while a second youthful offender who pleads guilty to three charges
and receives an identical sentence would be ineligible for the remedy.
-23-
The State Bureau of Investigation's Identification and Records
Sections receive many orders to expunge their records, as provided
for by the statute. We are, therefore, aware that many judges of
the State do order expungement in the circumstances which you
describe. In our opinion, the discretionary nature of consohdation
and the fact that the remedy of expungement is available only once
to a youthful offender neither previously nor subsequently convicted
provide adequate safeguards against abuse. We offer this
interpretation in the hope that practice may be more uniform
throughout the State and that the General Assembly's remedial
purpose may be carried out.
Rufus L. Edmisten, Attorney General
David S. Crump
Special Deputy Attorney General
Special Assistant to the Attorney General
28 August 1979
Subject: Reciprocal Enforcement of Support i
Action; Child Support; Registration of!
Foreign Support Orders
Requested by:
Question
:
Mr. Larry T. Black
District Court Judge
26 Judicial District
Do the registration provisions of the North i
Carohna Uniform Reciprocal Enforcements
of Support Act (G.S. 52A-25 through 30))'
apply so as to allow enforcement in North t
Carolina of foreign state support orders
entered prior to October 1, 1975?
Conclusion: Yes.
G.S. Chapter 52A, the Uniform Reciprocal Enforcement of Support
Act (hereinafter URESA) was first enacted in North Carolina la#
in 1951. In 1975 the act was rewritten in its entirety to substantially
-24-
conform to the 1968 revisions of URESA by the National
Conference of Commissioners on Uniform State Laws which include
a new procedure for the registration and enforcement of foreign
support orders. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d
633 (1977). The new registration provisions are codified as G.S.
52A-25 through 30.
The URESA, including the registration procedure established
thereunder, creates no new substantive rights between the party
seeking support and the party from whom support is being sought.
The act merely sets up new procedural mechanisms whereby through
substantially uniform legislation establishing reciprocity states have
i created a new and more efficient way of enforcing support
lobhgations. 2 Lee, N.C. Family Law 3d §169 (1963). By enacting
substantially similar Uniform Reciprocal Enforcement of Support
Acts, all fifty states have sought to avoid support enforcement
problems previously experienced because of the inapplicability of
the full faith and credit clause of Article IV, Section 1 of the United
States Constitution to foreign state support orders deemed to be
ijnon-final. Brockelbank and Infausto, Interstate Enforcement of
Wamily Support, pp. 77-90 (2d ed. 1971).
The bill (Senate Bill 357) passed in 1975 revising the Uniform
Reciprocal Enforcement of Support Act is entitled:
"AN ACT TO REWRITE CHAPTER 52A OF THE
GENERAL STATUTES ENTITLED 'UNIFORM
RECIPROCAL ENFORCEMENT OF SUPPORT
ACT'." N.C. Sess. Laws 1975 -c. 656, s.l.
After completely rewriting the text of the Uniform Reciprocal
Enforcement of Support Act in Section 1 of the bill, the General
Assembly went on in Section 2 of the bill to state as follows:
"This act shall not apply to pending litigation
including proceedings which have been initiated in a
state other than North Carolina." N.C. Sess. Laws
1975 c. 656 S.2.
3!
pThe foregoing statement by the General Assembly in Section 2 of
jfhe bill relating to the applicability of the rewritten URESA raises
-25-
I
the present issue as to whether the newly estabHshed registration
provisions may be used to obtain interstate enforcement of a support
order of another state predating the effective date (October 1 , 1 975)
of Senate Bill 357.
In an analogous case the North Carolina Supreme Court has
addressed the effect of applicability language virtually identical to
the language used in Section 2 of Senate Bill 357. Spencer v.
McDowell Motor Company, 236 N.C. 239, 72 S.E.2d 598 (1952).
In the Spencer case the defendant Motor Company was contesting
the effect of the General Assembly's enactment of an evidentiary
statute after the point in time when the plaintiff's cause of action
arose. In addressing the defendant's allegation that the statute should
not be retroactively applied because of language of non-applicability
to "pending litigation", the court in relevant part states:
"While appellant motor company does not contend
that the Legislature is without authority to change the
rules of evidence ..., it contends that under rules of
interpretation the Act should not be given retroactive
effect, that is, as to existing causes of act, ... It seems
clear, however, from the language of the Act that the
Legislature intended that on and after 1 July 1951,
the only hmitation upon the applicability of the Act
is that it shall not apply to pending litigation, that
is, litigation then pending. It is so expressly provided.
An action is pending from the time it is commenced
until its final determination. And a civil action is
commenced by the issuance of a summons. ...
Moreover, the maxim expressio unius est exclusio
alterius, that is, that the expression of one thing is
the exclusion of another applies. From the fact that
the Legislature expressly provided that the provisions
of the Act shall not apply to pending Htigation, it may
be imphed that it should apply in all other cases.
...(L)aw5 which change the rules of evidence relate to I
the remedy only, and are at all times subject to \
modification and control by the Legislature, and ... \
-26-
changes thus made may be made applicable to existing
causes of action. ... Retrospective laws would certainly
be in violation of the spirit of the Constitution if they
destroyed or impaired vested right, but ... one can have
no vested right in a rule of evidence when he could
have no such right in the remedy, and ... there is no
such thing as a vested right in any particular remedy.
"
Spencer v. McDowell Motor Company, supra, 236 N.C.
at 246. (quotations and citations omitted) (emphasis
supplied)
I Similarly, the Act in question, N.C. Sess. Laws 1975 c. 656, and
j specifically the registration provisions codified as G.S. 52A-26
ithrough 30 are purely remedies. Referring to the URESA as a
whole G.S. 52A-4 reads:
"These remedies herein are in addition to and not a
substitution for any other remedies."
:In addition to the foregoing provision concerning remedies, the
section of the Act immediately preceding the registration provisions
states:
"If the duty of support is based on a foreign support
order, the obligee has the additional remedies provided
in the following sections". G.S. 52A-25. (emphasis
supplied)
Accordingly, the URESA as rewritten in 1975 does not affect any
vested right of a potential defendant from whom support is sought.
A defendant has no vested right in limiting an obligee to pre-URESA
remedies for interstate enforcement of support duties, to wit:
following a defendant obligor into a foreign state forum for purposes
of lawsuit de novo there or after reducing any preexisting initiating
state support order to final judgment, pursuing the defendant obligor
to a foreign state for suit on the final judgment obtained under
the doctrine of full faith and credit.
A plaintiff's cause of action for failure to support, including that
under the URESA, is based on attempted enforcement of a duty
of support. Under the URESA this term is defined as follows:
-27-
i
'"Duty of Support' means a duty of support whether
imposed or imposable by law or by order, decree, or
judgment of any court whether interlocutory or final
or whether incidental to an action for divorce,
separation, separate maintenance, or otherwise and
includes the duty to pay arrearages of support past
due and unpaid". G.S. 52A-3(2). (emphc^is supplied)
Oftentimes, the obligee in an interstate support case has previously
obtained a support order in a state from which an obligor has fled.
Under the terminology of the URESA, when the registration remedy
^
(52A-25 through 30) is attempted to be invoked, the state in which
the order was initially obtained would be termed the "rendering
state". G.S. 52A-3(11).
Whenever a support order is outstanding in the state from which;
the obligor has fled, the obligee could in the alternative choose to
use the traditional URESA remedy. (G.S. 52A-1 through 52A-24).
2 Lee N.C. Family Law 3d §169 nn. 264-5(1963); Brockelbank
and Infausto, Interstate Enforcement of Family Support, p. 80 nn.;
189-190 (2nd ed. 1971). When proceeding under the traditional
URESA remedy, the state in which a support order was originally
obtained is termed the "initiating state". G.S. 52A-3(4).
Whenever there is a preexisting support order in a "rendering state"
or "initiating state", it may be argued there exists "pending
litigation" or "proceedings which have been initiated in a state other,
than North CaroUna" as the terms are used in N.C. Sess. Laws 1975
c. 656 S.2. In support matters htigation is always pending for the
cause of action remains in the continuing jurisdiction of the court!
and motions may always be made therein. Barber v. Barber, 216
N.C. 232, 4 S.E.2d 447 (1939).
Nevertheless, a preexisting order in another state cannot be logicallyj
interpreted to be "pending litigation" or "proceedings initiated in,
another state" so as to bar use of the registration procedures for
foreign state support orders obtained prior to October 1, 1975, the.
effective date of the legislation. Because Section 2 of Senate Bill
357 says "(t)his act shall not apply to pending litigation including
proceedings which have been instituted in a state other than Northi
-28- !
Carolina", such an interpretation would arguably make the totally
rewritten URESA mechanism, be it the traditional method or the
new registration method, unavailable to any obligee having, as is
often the case, a support order outstanding in an "initiating state"
or "rendering state" predating October 1, 1975.
A statutory construction of this nature would operate to defeat the
objects of the URESA and "must be avoided if that can be
reasonably done without violence to the legislative language". 12
N.C. Index 3d, Statutes §5.9. The URESA contains two sections
relating to the objects of this Legislative Act which state:
"The purposes of this Chapter are to improve and
extend by reciprocal legislation the enforcement of
duties of support and to make uniform the law with
respect thereto."
G.S. 52A-2; and
"This Chapter shall be so interpreted and construed
and as to effectuate its general purpose to make
uniform the law of those states having a substantially
similar act."
G.S. 52A-32.
Consequently, it would be an illogical construction of Section 2
of Sentate Bill 357, rewriting the URESA in its entirety, for the
words "pending litigation" or "proceedings initiated in another
state" to include a preexisting order of another state used as a basis
to estabHsh the duty of support under G.S. 52A-3(2) and a
concomitant basis for invoking either- the traditional or registration
remedies of the Act. If the construction was otherwise, all URESA
remedies would arguably be barred for all cases involving a
pre-October 1, 1975, order entered in a state other than North
Carolina while URESA cases for the same time frame but based
on the mere existence of a legal relationship hke parent/child would
be proper. This alternative construction steadfastly holding to a
literal interpretation of the statute would lead to an anomalous,
absurd result both unintended by the General Assembly and properly
avoidable. In general see 12 N.C. Index 3d Statutes § 5.9 (1978).
Moreover, there is yet another reason why the language in question
was not intended to encompass preexisting orders of other states;
-29-
that is, the North Carohna "act" as rewritten obviously could not
"apply" to pure orders of foreign states. With the exception of
proceedings or pending litigation instituted under a foreign URESA
with a view towards obtaining a support order in North Carohna
through the procedures established under the North Carolina
URESA, pending foreign proceedings or litigation are beyond the
jurisdiction of our legislative enactments. Therefore, the words in
question must logicahy refer to "pending URESA Htigation" or
URESA proceedings which have been initiated in a state other than
North Carohna."
i
For these reasons it is the opinion of this Office that the existence
of foreign state orders for support predating October 1, 1975, do
not bar the use of the URESA registration procedures (G.S. 52A-26
through 30) for purposes of registering and seeking enforcement of
such preexisting orders.
Rufus L. Edmisten, Attorney General
R. James Lore
Associate Attorney
29 August 1979
Subject:
Requested by:
Retirement; Local Disabihty Retirement
!
Plan; Longevity Pay Considered in
Computation.
Robert J. Robinson, City Attorney
Asheville
Question
:
Conclusion:
Should longevity pay be taken into
j
consideration in computing disability
|
payments to policemen retiring pursuant to \
provisions of the Asheville Pohcemen'sj
Pension and Disability Fund?
j
Yes.
Asheville policemen are members of the Asheville Policemen's
Pension and Disability Fund, pursuant to Chapter 188 of the 1977
-30-
Session Laws, amended by Chapter 429 of the 1 979 Session Laws.
The question has arisen whether longevity pay should be taken into
account in computing disability payments for policemen suffering
disability in the line of duty.
Section 3(a) requires the deduction of "five percent (5%) of the
monthly salary of every member of the policemen's fund" as a
mandatory contribution to the Asheville Pohcemen's Pension and
Disability Fund. The term "monthly salary" is not defined anywhere
in the Act. Service retirement benefits and benefits for disability
not incurred in the line of duty are computed according to a formula
based upon the member's total earnings in the last twenty years
of service for service retirement or since beginning service with the
i Asheville Police Department for Disabihty not incurred in the hne
j of duty. A member who is disabled while acting in the line of duty
or as a result of the performance of duties as a member of the
Asheville Police Department is entitled to "receive monthly a sum
equal to seventy percent (70%) of his monthly salary as then paid
by the City of Asheville ... ." Secfion 9(a), Chapter 188, 1977
payments shall be taken into consideration in computing seventy
percent (70%) of the monthly salary, or what constitutes the police
officer's monthly salary for purposes of computing the seventy
percent (70%) for disability retirement benefits.
I'Employees of the City of Asheville who have completed five or
more years of service are ehgible for longevity pay bonuses, at a
graduated rate according to the number of years of service.
Longevity pay bonuses are paid annually, during the second pay
period during the month of December. The "Longevity Pay Plan
Administration Guidehnes for Fiscal Year 1978-79" included a
statement that longevity pay bonuses are classified by the Internal
Revenue Service as part of an employee's normal income for the
current calendar year and that, as such, the bonuses were subject
to the normal deductions, including federal and state income tax,
.social security, and appHcable retirement and pension plans. In other
words, contributions to the Asheville Pohcemen's Pension and
Disability Fund have been deducted from these annual longevity
payments. The Guidehnes for administration of the longevity pay
plan for the fiscal year 1 978-79 include methods for computing the
bonus on a pro-rata basis for each month of service for employees
ion leave without pay during part of the fiscal year and for employees
-31-
who retired during the fiscal year. However, it appears that
contributions to the Asheville PoUcemen's Pension and Disabihty
Fund have not been deducted for longevity pay bonuses paid on
a pro-rata basis to employees who have retired or applied for
disability retirement on the basis of a disability incurred in the line
of duty or as a result of the performance of their duties even though
these pro-rata longevity pay bonuses have been paid for the period
during which these pohcemen were in active service.
Given all the facts and circumstances, it appears that a portion of
the longevity bonuses which represent one month's employment
should be included in the member's monthly salary" in order to
compute seventy percent (70%) of the monthly salary of a policeman
retiring on disability incurred in the line of duty or as a result of
performance of duties. Although contributions to the Asheville
Policemen's Pension and Disability Fund are not deducted from
longevity pay bonuses made after the employee ceases to work
because of disability, normally pension fund contributions are
deducted from longevity pay bonuses. It does not appear reasonable
to conclude that "monthly salary" includes longevity pay bonuses
for purposes of determining deductions from one's salary, but not
for purposes of computing seventy percent (70%) of the salary for
benefits. Barring specific statutory provisions to the contrary, funds
from which disabihty and pension fund contributions are deducted
should be included in the basis for computing a disability and
pension fund benefit. Therefore, it is our opinion that longevity
pay bonuses should be taken into consideration in computing
seventy percent (70%) of an Asheville policeman's salary for
purposes of determining monthly benefits for a pohce officer who
becomes disabled in the hne of duty or as a result of the performance
of duties as an Asheville pohce officer.
The same conclusion would not necessarily hold true for persons
retiring from the Asheville Pohcemen 's Pension and Disability Fund i
on a line of duty disabihty basis when the provisions as amended
in 1979 control. The 1979 amendments, in Chapter 429 of the
Session Laws, provide for a line of duty disability in the amount
of seventy percent (70%) of the member's "basic monthly salary
rate as then paid by the City of Asheville." The change in language
for hne of duty disabihty, with no change in the language directing
the deduction of five percent (5%) from the member's "monthly
-32-
salary," requires the conclusion that the basis upon which the line
of duty disability is figured will differ from the compensation from
which the mandatory five percent (5%) employee contribution is
deducted.
Rufus L. Edmisten, Attorney General
Norma S. Harrell
Assistant Attorney General
29 August 1979
Subject:
Requested by:
Question
:
Railroad Company; North Carolina
Railroad Company; Atlantic and North
Carohna Railroad Company; Acquisitions
and Dispositions of Real Property;
Governor and Council of State.
Mr. Joseph W. Grimsley, Secretary
Department of Administration
Do future land acquisitions or dispositions
planned by the North Carohna Railroad
Company and the Atlantic and North
Carolina Railroad Company require the
prior approval of the Governor and Council
of State?
Future dispositions of real property by
these companies must be approved by the
Governor and Council of State.
Acquisitions of real property by these
companies are not subject to the approval
of the Governor and Council of State
unless the acquisition constitutes an
encumbrance on the property of the
Railroad.
The North Carolina Railroad Company was incorporated by the
General Assembly of North Carohna as a private corporation in
-33-
Conclusion:
II
1849. Session Laws of North Carolina, 1849, Chapter 83. The
Atlantic and North Carolina Railroad Company was incorporated
by the General Assembly of North Carohna as a private corporation
in 1852. Session Laws of North Carohna, 1852, Chapter 136. The
State of North Carolina is the majority stockholder in each of the
corporations. The State owns 75.8 percent of the stock in the North
Carolina Railroad Company. It owns 73.5 percent of the stock in
the atlantic and North Carolina Railroad Company.
G.S. 124-5 reads as follows:
"no corporation or company in which the State has
or owns any stock or any interest shall sell, lease
mortgage, or otherwise encumber its franchise,
right-of-way, or other property, except by and with
the approval and consent of the Governor and Council
of State."
This statute, if given its full Uteral affect, would apply to a
disposition of real property by any corporation in which the State
owns a single share of stock. Such a construction might give rise
to a question of constitutionality. However, it is unnecessary to
address that question at this time.
The State of North Carolina is the majority stockholder in each
of the Railroad companies. There is a presumption in favor of the
constitutionahty of a statute. Strong's N. C. Index 3d, Statutes,
§4.1. We are of the opinion that this statute would be constitutional
as applied to the North Carolina Railroad Company and the Atlantic
and North Carohna Railroad Company. Therefore, we conclude that
future dispositions of real property by these companies require the
approval of the Governor and Council of State.
G.S. 124-5 appUes only to dispositions of property. It does not apply
to acquisitions of property except when the acquisition would
constitute an encumbrance on the property of the Railroad. We are
unable to find any other statutory provision which requires approval
by the Governor and Council of State for acquisition of property
by these companies. Since these companies are private corporations,
the provisions of Chapter 146 of the General Statutes relating to
acquisitions of real property by State agencies would not apply.
-34-
4 September 1979
Subject:
Requested by:
Questions:
Conclusion:
Rufus L. Edmisten, Attorney General
Roy A. Giles, Jr.
Assistant Attorney General
Courts; Costs; Witnesses; Worthless Checks;
G.S. 7A-314; G.S. 14-107(5) as Enacted by
Chapter 837, Session Laws of 1979.
Honorable John S. Gardner
Chief District Court Judge
704 W. 27th St.
Lumberton, N. C. 28358
1. In a worthless check prosecution
pursuant to G.S. 14-107 where the
defendant pays the worthless check and
court costs to the magistrate before the
date of trial, and the prosecuting witness
is not present before the magistrate, should
the prosecuting witness be paid the witness
fee under G.S. 14-107(5)? Should the fee
be included in the bill of cost?
2. If on the date of trial, the defendant
pleads guilty, and the prosecuting witness
is not present in court and does not testify,
would the prosecuting witness be entitled
to the witness fee under G.S. 14-107(5)
and should it be taxed as costs?
1 No.
No.
In its strict legal sense, the word "witness" means one who gives
evidence in a cause before the court. 97 CJS 350.
-35-
The right of a witness to compensation is purely statutory, and the
court's power to tax costs is entirely dependent upon statutory
authorization. State v. Johnston, 282 N.C. 1.
The right to tax costs did not exist at common law. Costs are penal
in nature and statutes relating to costs are strictly construed. City
of Charlotte v. McNeely, 281 N.C. 692.
In McNeely, supra, the Court held that a party who testified for
himself was not entitled to a witness fee.
The general rule seems to be that a witness must be in actual
attendance on the Court to be entitled to compensation, but he
need not be called to testify.
Likewise, the rule is that in order to tax the other party for
plaintiff's witness fees, the plaintiff's witnesses must be under
subpoena, and must be examined or tendered. Johnson, supra.
G.S. 7A-314 provides that a witness under subpoena, bound over
or recognized to testify shall be entitled to receive $5.00 per day
or fraction thereof, during his attendance. (Emphasis added)
Chapter 837, Session Laws of 1979, amended G.S. 14-107 by adding
subsection (5) to read:
"(5) In deciding to impose any sentence other than
an active prison sentence, the sentencing judge may
require, in accordance with the provisions of G.S.
15A-1343, restitution to the victim for the amount
of the check or draft and each prosecuting witness
(whether or not under subpoena) shall be entitled to
a witness fee as provided by G.S. 7A-314, which shall
be taxed as part of the cost and assessed to the
defendant."
Thus, we conclude that in those cases where the prosecuting witness
is entitled to a witness fee, the prosecuting witness must be in
attendance upon the Court before the witness fee can be taxed as
part of the costs.
-36-
G.S. 14-107(5) is an exception to the requirement that the witness
must be under subpoena, but actual attendance on the Court is
required.
The compensation to a witness is not to pay him for testifying,
but simply to provide partial reimbursement for the time and
expense incurred from being in attendance upon the Court.
Under the facts presented, the prosecuting witness was not in
attendance upon the court and witness fee authorized by G.S.
14-107(5) should not be taxed as costs.
Rufus L. Edmisten, Attorney General
James F. Bullock
Senior Deputy Attorney General
13 September 1979
Subject
:
Requested by:
Question:
Conclusion:
Constitution; U.S. Constitution; First
Amendment Right to Association;
Municipal Employees; Unions; Supervisory
Personnel Membership in Union
Representing Employees.
E. Murray Tate, Jr., Esquire
City Attorney
Hickory, North Carolina
May a city terminate the employment of
a Fire Department Officer with supervisory
duties solely on account of his membership
in a labor union which counts
non-supervisory fire department personnel
among its members?
A city has a legitimate interest in
maintaining a disciplined and efficient fire
department. That interest is significantly
compromised by the conflicting loyalties
-37-
which unavoidably arise when fire
\
department supervisors join unions which ^
represent fire department employees.
Therefore, the city may legally prohibit i
supervisory personnel from joining unions i
which include in their membership
non-supervisory fire department !
employees. '
It has long since been decided that the freedom of association
attendant to and protected by the First and Fourteenth i
Amendments of the United States Constitution encompasses i
economic associations such as labor unions, Thomas v. Collins, 323 i
U.S. 516 (1945); Atkins v. City of Charlotte, 296 F. Supp. 1078
(W.D.N.C. 1969). Moreover, one may no longer seriously question
whether public employees have the same associational rights as their
privately employed counterparts, Elrod v. Bums, 427 U.S. 347
(1976); McLaughlin v. Tilendis 398 F.2d 287 (7 Cir. 1968);
AFSCME V. Woodward, 406 F.2d 137 (8 Cir. 1969). Nevertheless,
a public employee's First Amendment rights are not without Hmit.
See Civil Service Commission v. National Association of Letter \
Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413 U.S.
601 (1973); Elk Grove Fire Fighters Local No. 2340 v. Willis, 400 I
F. Supp. 1097 (N.D. 111. 1975), affirmed, 539 F.2d 714 (7 Cir.
1976); York County Fire Fighters Association, Local 2498 v. York ,
County, 589 F.2d 775 (4 Cir. 1978). i
Contemporary First Amendment analysis requires that the
constitutionality of a state action be determined only after the
public interest which the state's action purports to protect is
balanced against the individual interests of the person or persons i
affected by the action. Following this analysis, the United States
Supreme Court has held that a state may not limit First Amendment \
freedoms unless it first estabhshes: (1) the existence of a substantial,
j
legitimate state interest; (2) a direct relationship between that i
interest to be served and the proposed state action; and (3) the
|
action is the least drastic restriction of constitutional rights which \
will accomplish the state's purpose, Shelton v. Tucker, 364 U.S. i
479 (1960).
Several federal courts have recently had an occasion to apply this
three-prong test to state laws which prohibit publicly employed
-38-
supervisors from joining unions which include in their membership
employees under those supervisors' authority. In three cases deaUng
specifically with fire department personnel, these courts have upheld
a state's right to impose this limit upon their supervisors' union
membership.
In Elk Grove Fire Fighters Local Na 2340 v. Willis, supra. Local
2263, International Association of Fire Fighters v. City of Tupelo,
Mississippi, 439 F. Supp. 1224 (N.D. Miss., Ed 1977), and York
County Fire Fighters v. Yorktown, supra, federal courts were asked
to determine whether a municipahty might constitutionally prohibit
fire department supervisory personnel from joining unions which
counted non-supervisory fire department employees among its
members. Following the analysis and guidelines established by the
{ United States Supreme Court, these courts first found that the state
has a legitimate and substantial interest in the efficiency of its fire
departments.
I'The courts next found supervisor membership in unions to be
inimical to fire department efficiency, Elk Grove, supra, at 1100.
In reaching this conclusion, the judges reHed heavily upon the
congressional judgment embodied in Section 14(a) of the Labor
Management Relations Act (29 U.S.C. §169 (a)). That section of
the Taft-Hartley Amendments freed employers to discharge
supervisors who joined unions and reflected a legislative
determination that management, like labor, must be assured a
contingent of loyal agents. See Beasley v. Food Fair of North
Carolina, 416 U.S. 653 (1974). Though noting that the NLRA is
limited to private employers, the courts pointed out the parallels
between the private and public sector which make that
determination equally applicable to government employers.
Legislation aside, the courts found support for their holding in the
adversarial labor-managemetn relation. In times of labor unrest
(strikes, picketing, slowdowns) unionized supervisors' loyalties would
naturally be divided. Moreover, a more pervasive and potentially
more disruptive conflict of interest would necessarily arise out of
the cities' use of unionized officers to implement municipal policies
[which the union might oppose.
- -- -39-
"Practically the only circumstance in which a conflict
of interest would fail to arise would be if there were
no conflict between (city) officials and the firefighters
union over any aspect of working conditions, a rather
unlikely eventuality." Elk Grove, supra at 1103.
Thus the courts found that supervisor membership in unions would
retard department efficiency and interfere with a substantial state
interest.
Finally, the courts found the regulations in question to be the least
restrictive means of accomplishing the state's objectives. They
emphasized that the regulations did not prohibit supervisors from
joining any union, but only enjoined their membership in unions
which counted fire department employees among their members.
The courts held such a limitation to be clearly and precisely drawn
to achieve the state's legitimate objectives while avoiding undue
restriction of the supervisors' rights.
In sum it has been determined that the state's interest in maintaining \
an effective fire fighting force outweighs the supervisors' limited 1
interest in belonging to a union which represents their subordinates.
Therefore, a city may constitutionally prohibit a fire department I
officer from joining a labor union which includes non-supervisory
\
fire department employees among its members.
Rufus L. Edmisten, Attorney General I
Thomas J. Ziko '
Associate Attorney
14 September 1979
Subject
:
Requested by:
Licenses and Licensing; Occupational
Licensing Board; Travel Expense of
Members; Payment of Actual Travel
Expenses
Henry L. Bridges
State Auditor
^0-
Question: Does G.S. 138-7 authorize the payment of
actual travel expenses to members of
occupational licensing boards, over and
above the amounts provided in the
schedule in G.S. 138-6(a)(3) for officers
and employees of State departments?
Conclusion: No. G.S. 138-7 does not authorize the
reimbursement of excess travel expenses of
members of occupational licensing boards,
by reason of: (1) the express limitation of
G.S. 93B-5(b) restricting reimbursement of
occupational licensing board members to
amounts "not to exceed that authorized
under G.S. 138-6(a) (1)(2) and (3)" for
State employees; (2) the express restriction
of G.S. 93B-5(d) which provides that
"except as provided herein, board members
shall not be paid a salary or receive any
compensation for services rendered as
members of the board"; and (3) the
absence of any express exception in G.S.
138-7 to G.S. 93B-5 as was made to G.S.
138-5 and G.S. 138-6.
iG.S. 93B-5 provides for compensation exclusively for members of
occupational licensing boards. Subsection (b) provides for
reimbursement of travel expenses "in an amount not to exceed that
authorized under G.S. 138-6(a)(l)(2) and (3) for officers and
employees of State departments". Subsection (d) provides: "except
as provided herein board members shall not be paid a salary or
receive any additional compensation for services rendered as
members of the board.
"
|G.S. 138-6(a) provides for travel allowances for State officers and
employees of State departments, institutions and agencies which
operate from funds deposited with the State Treasurer. Subsection
(3) provides for "in lieu of actual expenses incurred for subsistence,
payment of $31.00 per day when traveling in State or $39.00 per
day when traveling out-of-state." It further provides for proration
of subsistence payment when travel involves less than a 24 hour
-41-
period in accordance with regulations promulgated by the Director
of the Budget.
G.S. 138-7 as rewritten by the 1979 General Assembly provides that
"expenditures in excess of the maximum amount set forth in G.S.
138-5 and G.S. 138-6 for travel and subsistence may be reimbursed
if the prior approval of the department head is obtained." The
Budget Director is required to establish and promulgate regulations
under which "actual expense in excess of travel and subsistence
allowance and convention registration fees as prescribed in G.S.
138-5 and G.S. 138-6 may be authorized by department heads for
hotel, meals and registration." (Chapter 838, Section 17, 1979
Session Laws).
G.S. 138-5 provides for compensation for all boards and
commissions, (excluding occupational licensing boards), which
operate from funds deposited with the State Treasurer. Subsection
(2) provides for the payment of subsistence while traveling at the
rate of $15.00 per day or $35.00 per day when away over-night.
The language of G.S. 93B-5 is clear and does not require
interpretation. G.S. 93B-5 deals exclusively with the compensation
of occupational Hcensing board members and controls over any other
statutes having general application. The language used expressly
Umits subsistence of occupational licensing board members to
amounts not to exceed that authorized by G.S. 138-6(a)(3). By
reference, an express limitation of $31.00 per day for in-state travel
and $39.00 per day out-of-state is placed on the amount of )
subsistence to be reimbursed, subject to proration according to
regulation promulgated by the director of the budget for periods
j
of travel less than a twenty-four hour period. G.S. 93B-5 further i
prohibits the payment of any additional compensation for services
except as provided by G.S. 93B-5.
G.S. 138-7 expressly provides for exceptions to G.S. 138-5 and G.S.
138-6 and authorizes reimbursement for actual expenses in excess
of travel and subsistence as "prescribed by G.S. 138-5 and G.S.
138-6." G.S. 138-5 and G.S. 138-6 prescribe compensation for
members of State boards and commissions excluding occupational
licensing boards and for officers and employees of State agencies,
which operate from funds deposited with the State Treasurer. G.S.
-42-
138-7 does not provide an exception to the statute authorizing
compensation to occupational licensing board members (G.S. 93B-5)
as it does to other statutes authorizing compensation for members
of boards and commissions excluding occupational Ucensing boards
I
(G.S. 138-5) and to State officers and employees (G.S. 138-6). Where
I express exceptions are made, the legal presumption is that the
Legislature did not intend to save other cases from the operation
lof the statute. 50 Am. Jur. Statutes §434.
A review of the history of the statutes providing for reimbursement
for travel expenses supports the conclusion that G.S. 138-7 has no
! appHcation to the reimbursement of travel expenses for occupational
'licensing board members. The statute (G.S. 93B-5) dealing
exclusively with occupational licensing boards was passed and
i codified in 1957. In 1961, the General Assembly enacted and
codified G.S. 138-5, G.S. 138-6 and G.S. 138-7 (Chapter 833,
Sections 5, 6 and 6.1). The provisions were basically the same as
had been previously provided in the 1957 and 1959 Budget
Appropriations Acts with two exceptions. G.S. 138-5 and G.S. 138-6
as now codified only apply to boards and commissions and State
departments and agencies "which operate from funds deposited with
the State Treasurer". The other exception is that previously no
excess payments had been authorized and a specific provision was
made for reimbursement for excess travel expenses incurred over
the amounts in the schedule which was codified as G.S. 138-7.
i
G.S. 138-7 expressly provides exceptions to G.S. 138-5 and G.S.
138-6" and requires the Director of the Budget to promulgate
regulations under which actual expenses in excess of those
''prescribed by G.S. 138-5 and G.S. 138-6 may be reimbursed. We
have considered the 1979 amendment. The 1979 amendment to G.S.
138-7: (1) reversed the sequence of the two sentences in that section;
(2) eliminated the requirement for approval of the Advisory Budget
Commission for the promulgation of the rules and regulations; and
(3) provided for prior approval of the department head for
reimbursement of travel and subsistence in heu of the prior approval
of the Director of the Budget. We do not find that the rewrite
of G.S. 138-7 by the 1979 General Assembly extended the
exceptions to the statute providing compensation to occupational
licensing board members or to agencies which operate from funds
iwhich are not deposited with the State Treasurer.
-43-
For the foregoing reasons, this Office is of the opinion that G.S.
138-7 does not authorize the reimbursement of occupational
licensing board members for subsistence expenses incurred in
connection with travel in excess of the rates specified in G.S.
138-6(a)(3).
Rufus L. Edmisten, Attorney General
Eugene A. Smith
Special Deputy Attorney General
17 September 1979
Subject:
Requested by:
Questions:
Lotteries; Bingo; Raffles; High School
Booster's Club; Five-Hundred Dollars t
($500) Limitation; Merchandise
Mr. R. Michael Jones
Lucas, Rand, Rose, Meyer, Jones & Orcutt,
P.A.
Counsel for the Wilson County School
System
1. May the local high school booster's
club legally sponsor a raffle which offers
merchandise as a prize or must any prize
be in the form of cash?
2. If an exempt organization may offer
merchandise as well as cash prizes in the
conduct of a raffle, does the five hundred
dollars ($500) limitation apply to prizes in
the form of merchandise?
Conclusions: 1. Yes. An exempt organization may
legally sponsor a raffle which offers
merchandise as a prize; the prize need not
be in the form of cash.
2. No. Only a cash prize is limited in
the amount of five hundred dollars ($500).
-44-
Subsection (g) of G.S. 14-292.1 deals with the limitations on the
amount of cash prizes and the value of merchandise prizes to be
offered or paid in bingo games and raffles. Subsection (g) reads as
follows:
"(g) The maximum prize in cash or merchandise that
may be offered or paid for any one game of bingo
is five hundred dollars ($500.00). The maximum
aggregate amount of prizes, in cash andIor
merchandise, that may be offered or paid at any one
session of bingo is one thousand five hundred dollars
($1,500). Provided, however, that if an exempt
organization holds only one session of bingo during
a calendar week, the maximum aggregate amount of
prizes, in cash andlor merchandise, that may be
offered or paid at any one session is two thousand
five hundred dollars ($2,500). The maximum cash
prize that may be offered or paid for any one raffle
is five hundred dollars ($500.00)." (Emphasis added)
Each of the above limitations on prizes for both raffles and bingo
games are very specific. These specific limitations are hmitations on
the general exemption from North CaroHna lottery laws (Article 37
I
of Chapter 14 of the General Statutes) for exempt organizations
'to operate and sponsor bingo games and raffles. The clear and
definite use of the terms "cash" and "merchandise" in the three
sentences in subsection (g) relating to bingo games and the term
"cash" in the last sentence of subsection (g) relating to raffles leads
jto the conclusion that the legislature- clearly intended to make no
ispecific limitation in regards to merchandise prizes for raffles.
i
ITherefore, provided the exempt organization meets all other
requirements of G.S. 14-292.1, merchandise may be offered or paid
as prizes for a raffle and there is no limitation as to the value of
[such merchandise prizes.
Rufus L. Edmisten, Attorney General
! Acie L. Ward
Assistant Attorney General
-45-
3 October 1979
Subject: Motor Vehicles; Size of Vehicles and Loads
Requested by: Mr. Randy Jones
North Carohna Department of Natural
Resources & Community Development
Division of Environmental Management
Question: Does G.S. 20-1 16(g) apply to a basically
"unloaded" truck that is depositing
material on the road?
Conclusion: Yes.
G.S. 20-1 16(g) reads in relevant part:
"(g) No vehicle shall be driven or moved on any
highway unless such vehicles is so constructed or
loaded as to prevent any of its load from dropping,
sifting, leaking, or otherwise escaping therefrom,
except that sand may be dropped for the purpose of
securing traction, or water or other substance may be
sprinkled on a roadway in cleaning or maintaining such
roadway. ..."
Any part of a load or what may remain as a prior load dropping,
,
sifting, leaking, or otherwise escaping from a vehicle other than sand
being dropped for the purpose of securing traction or water or other
substance being sprinkled on the roadway for the purpose of
maintaining the roadway would constitute a violation of this section.
The provision appearing in the last unnumbered paragraph of this
section relative to the transportation of poultry, livestock, silage or
other feed grain should be noted.
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
-46-
3 October 1979
Subject: Courts; Costs Allowed for Service of Civil
Process.
Requested by: Larry J. McGlothlin
Cumberland County Sheriff's Attorney
Question: Does G.S. 7A-3 11(a)(1) require civil
process fees to be assessed, collected and
remitted when the law enforcement officer
serves or attempts to serve civil process?
Conclusion: Yes.
Chapter 310, Session Laws of 1965, enacted G.S. 7A-311 and
provided the fee to be assessed and collected for each item of civil
|)rocess served or attempted to be served.
Iphapter 417, Session Laws of 1973 amended G.S. 7A-311(a)(r) by
jieleting the phrase "or attempted to be served".
{
Iphapter 1139, Session Laws of 1973 (2d Session) amended G.S.
i7A-311 (a)(1) by adding a new sentence: "If the process is served,
[t)r attempted to be served by the sheriff, the fee shall be remitted
(o the city rather than the county."
Chapter 801, Session Laws of 1979 rewrote G.S. 7A-31 1(a)(1) and
livided it into subsections (a) and (b). The first deals with the
imount of the fee to be assessed and (b) contains the language that
the process is served, or attempted to be served, the fee shall
e paid to the city if by a policeman and to the county if by the
heriff.
t appears clear from the history and language of G.S. 7A-31 1(a)(1),
hat the fee is paid when the process is served, or attempted to
)e served, by the law enforcement officer.
Rufus L. Edmisten, Attorney General
James F. Bullock
"^ Senior Deputy Attorney General
-47-
3 October 1979
Subject: Register of Deeds; Mortgages and Deeds of
Trust-Cancellation
Requested by: W. W. Speight
Pitt County Attorney
Question: Is the beneficiary of a deed of trust who
is also the payee or holder of the note
entitled to have the deed of trust cancelled
of record?
Conclusion: Yes.
G.S. §45-37(2) provides that a deed of trust may be cancelled of
record if the deed of trust and note or other instrument secured
thereby are exhibited to the Register of Deeds, with the endorsement
of payment and satisfaction by i
(a) The obligee
(b) The mortagee
(c) The trustee
(d) An assignee of the obhgee,
mortgagee, or trustee, or
(e) Any chartered banking institution.
As pointed out in a previous opinion, the beneficiary of a deed
of trust, as such, is not one of the persons authorized by the statute
to obtain cancellation. 48 N.C.A.G. 50 (1978). There was no
indication in the question upon which that opinion was based that
the beneficiary was an obligee, a bank or assignee thereof. Id, at[
p. 51. :
The question presented here clearly states that the beneficiary of;
the deed of trust is also the payee or holder of the underlying
indebtedness. In this case, the beneficiary is an obligee. See,,
BLACK'S LAW DICT. 1226 (Rev. 4th Ed. 1968). Therefore, thei
beneficiary, in his capacity as obligee may make the required
endorsements and obtain cancellation of record of the deed of trust, i
-48-
Rufus L. Edmisten, Attorney General
Lucien Capone, III
Associate Attorney General
October 1979
Subject
:
Requested by:
I
j
buestion:
Weapons; Carrying Concealed Weapons;
Railroad Police
Lawton Eure, Training Evaluator
Criminal Justice Training & Standards
Council
Can Railroad police carry concealed
weapons anywhere in the State when in the
performance of their official duties?
iConclusion: Yes.
I
[n relevent part, G.S. 14-269 reads as follows:
§14-269. Carrying concealed weapons -If anyone,
except when on his own premises, shall willfully and
intentionally carry concealed about his person any
bowie knife, dirk, dagger, sling shot, loaded cane,
brass, iron or metallic knuckles, razor, pistol, gun or
other deadly weapon of hke kind, he shall be guilty
of a misdemeanor punishable by a fine not to exceed
five hundred dollars ($500.00), imprisonment for not
more than six months, or both. This section shall not
apply to the following persons: ... officers of the
State, or of any county, city, or town, charged with
the execution of the laws of the State when acting
in the discharge of their official duties, ..."
-,
.S. 74A-2, in relevant part, reads as follows:
"§74A-2. Oath, powers, and bond of company police;
exceptions as to railroad police.-(a.) Every poUceman
-49-
so appointed shall, before entering upon the duties of |
his office, take and subscribe the usual oath. '
(b) Such pohcemen, while in the performance of the i
|
duties of their employment, shall severally possess all I
the powers of municipal and county police officers
to make arrests for both felonies and misdemeanors: [
(1) Upon property owned by or in the |
possession and control of their respective
employers; or ^
(2) Upon property owned by or in the i
possession and control of any person or persons
'
who shall have contracted with their employer
(
or employers to provide security for protective
|
services for such property; or
(3) Upon any other premises while in hot
pursuit of any person or persons for any offense
committed upon property vested in subdivisions
(1) and (2) above.
(d) The limitations on the power to make arrests
contained in subdivision (1), (2) (and) (3) of
subsection (b) shall not be applicable to pohcemen
appointed for any railroad company. Policemen
appointed for railroad companies shall be required to
post a bond in the sum of five hundred dollars
($500.00) in lieu of the bond required by subsection
(c)."
G.S. 74A-3 reads:
"74A-3. Company police to wear badges-Such
policemen shall, when on duty, severally wear a shield
with the words 'Railway PoHce' or 'Company Pohce'
and the name of the corporation for which appointed
inscribed thereon, and this shield shall always be worn
-50-
'i
in plain view except when such police are employed
as detectives."
G.S. 74C-3(8)(b)(6) reads:
"Private protective services shall not mean:
(6) Company poHce or railroad police as defined in
Chapter 74A of the General Statutes of North
Carolina; ..."
In Tate v. R.R., 205 N.C. 51 (1933), the Court held:
"The weight of authority maintains the position that
special officers appointed by the State for poHce duty
at the expense of a railway company or other
corporation are prima facie public officers, ..."
In Assoc, of Licensed Detectives v. Morgan, Attorney General, 17
N.C. App. 701 (1973) the Court said:
"Private or special police are public officers, Tate v.
R.R., 205 N.C. 51, 169 S.E. 816 (1933), and
therefore, a proper subject of regulation by the State
in exercise of its police power."
It would appear that railroad pohce fall into one of two categories;
i.e., those hired for the purpose of security of railroad property,
and those who serve in the capacity of detectives. Those who serve
in the general capacity of security of property should comply with
the provisions of G.S. 74A-3 relative to the wearing of a shield with
the words "Railway Police" and the name of the company or
; corporation for which they are appointed. Therefore, if a weapon
is needed, concealment would serve no purpose, however, such does
not appear to be prohibited while on the railway's property. Railway
police employed as detectives are not required to wear a shield as
they are exempt from the requirements of G.S. 74A-3. Further,
I
being a pubUc officer, they are also exempt from the provisions
I of G.S. 14-269 while on duty. As to whether a railway detective
is on duty is simply a question of fact.
-51-
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
9 October 1979
Subject:
Requested by:
Question:
Conclusion:
Counties, Municipalities, Garnishment,
Child Welfare, Garnishment for
Enforcement of Child Support, N.C.G.S.
110-136.
Rufus C. Boutwell, Jr.
Assistant City Attorney
City of Durham
Does a city have immunity fromi
[
garnishment proceedings brought for child
support under N.C.G.S. 110-136?
No. The legislative intent of Article 9,
Chapter 110 of the General Statutes is to
provide financial support for dependent
|
children and to provide an enforcement'
procedure against the parent responsible;
for providing support to such children.!
Thus, limited to the narrow area of child'
support under Article 9, it is the opinion
of this Office that the General Assembly:
did not intend to provide a remedy ofi
support for all children except those whosei
parents are employed by a governmental!
entity. Therefore, the city may be ai
garnishee for this hmited purpose. |
We find no North Carolina case dealing with the specific question
in the area of child support or construing G.S. 110-136 where a
governmental entity was the garnishee. The general rule in this State,
and apparently the majority rule, is that the State, or poUtical
subdivisions and agencies thereof, cannot be summoned as garnishees
-52-
in any action without statutory authority. Various reasons have been
given by the courts, including the reason that public pohcy demands
the exemption of the government and its agencies from Hability as
garnishees. In Swepson v. Turner, 16 N.C. 115, the North Carolina
Supreme Court adopted the pubhc policy view. So far as can be
ascertained, however, this case has not been cited or reHed upon
in this State since the opinion was written in 1877.
We do not depart from the general rule stated above, but we do
construe the language of G.S. 110-136, and the purpose set forth
in G.S. 110-128 as revealing a legislative intent to provide child
support for all dependent children and not to discriminate against
those children whose parents happen to be employed by the State
] or any of its agencies or poHtical subdivisions thereof.
I
The pertinent statute, G.S, 110-136, providing for garnishment for
enforcement of child-support obhgation, commences with the words
i "(n)otwithstanding any other provision of the law". These words
generally mean in spite of other provisions and that the statute
operates without obstruction from other statutes. This has been held
; to carry over to decisional law. Dover v. Dover, 15 C.A. 3d 675,
93 Cal. Rptr. 384; Words and Phrases, Vol. 28A.
Further, the garnishment statute under inquiry provides, in part,
that "(t)he garnishee is the person, firm, association, or corporation
i by whom the responsible parent is employed." G.S. 1 10-1 36(a). G.S.
12-3(b) defines the word "person" as extending to and applied
i to bodies politic and corporate, as well as individuals, unless the
* context clearly shows otherwise. A body politic is a State, county,
or municipal corporation. Student Baf Asso. v. Byrd, 293 N.C. at
!600. Thus, we construe the word "person" as used in G.S. 110-136
as embracing the State, a county or municipality.
The welfare of children has always been a paramount concern of
the courts and the State. The General Assembly, in recent years,
has expressed its concern in this area by the enactment of various
(legislation. It does not seem reasonable to think that it intended
i'to deny a valuable remedy for enforcement of the support obligation
ito some children simply because the responsible parent is an
employee of the State, county, city or other governmental entity.
-53-
We hold, therefore, that, by reason of the legislative intent and
pubhc policy expressed in G.S. 110-136, the statute is applicable
to the State, counties and municipal corporations, and they are not
immune from garnishment proceedings brought thereunder.
Rufus L. Edmisten, Attorney General
William F. Briley
Assistant Attorney General
10 October 1979
Subject:
Requested by:
Question:
Conclusion:
Social Services; Medicaid; Mental Health;
Hospitals
Dr. Sarah T. Morrow, Secretary
North Carohna Department of Human
Resources
Under the 1979 Appropriations Act, may
mental and specialty hospitals in North
Carohna be reimbursed by the Medicaid
\
program for an unUmited number of
administrative days?
Yes.
Under Section 23 of the 1979 Appropriations Act for the State |
of North Carohna (Chapter 838 of the 1979 Session Laws), the;,
Medicaid program will pay on behalf of its recipients allowable costs
for all hospital in-patient care rendered, subject to the exception
that payment for administrative days shall be limited to a maximum
of three days for any period of hospitalization. It is our
understanding that administrative days are days during which
alternative placement of a patient is planned and effected and for
which there is no medical necessity for hospital in-patient care. In
essence, these days constitute a grace period for the orderly
placement of a Medicaid patient into a lesser level of care or home
setting. The apparent intent of the General Assembly in enacting
the provision relating to administrative days was to provide a
-54-
financial disincentive to allowing Medicaid patients to linger in
hospitals when the medical necessity for hospitalization had expired.
By imposing the aforementioned limitation on Medicaid payment
for administrative days, it appears that it was the expectation of
the General Assembly that hospitals would act in their own best
financial interest by providing for the timely and appropriate
discharge of Medicaid patients who no longer require hospitaUzation.
iOn the other hand, the Medicaid payment basis for mental and
specialty hospital services under Section 23 of the 1979
Appropriations Act is not subject to any limitation on allowable
costs. Hence, the indisputable answer to the question posed is that
(under the 1 979 Appropriations Act for the State of North Carolina
mental and specialty hospitals may be reimbursed by the Medicaid
program for an unlimited number of administrative days. The
absence of any Umitation on Medicaid payment for administrative
days with respect to mental and specialty hospitals is probably
{founded on the rather substantial difficulty in making alternative
placement arrangements for mentally and physically handicapped
patients.
It should be noted that this Opinion addresses a narrow question
relating exclusively to the State Appropriations Act. We have neither
JDeen asked for nor offer our opinion on whether the difference
in payment basis between regular hospital in-patient care and mental
;ind specialty hospital care may conflict with federal law or
regulations or constitutional mandates.
Rufus L. Edmisten, Attorney General
William Woodward Webb
Special Deputy Attorney General
10 October 1979
subject: Mental Health, Area Mental Health, Mental
Retardation and Substance Abuse
Authorities; marking of motor vehicles
_ owned by area authorities.
-55-
Requested by:
Question:
Conclusion:
Sarah T. Morrow, M.D., M.P.H.
Secretary
Department of Human Resources
Does G.S. 14-250 requiring certain publicly
owned vehicles to be marked apply to
vehicles owned by an area mental health,
mental retardation and substance abuse
authority?
No. '
As pertaining to this inquiry, G.S. 14-250 provides as follows:
"It shall be the duty of the executive head of every
department of the State government, and of any
county, or of any institution or agency of the State,
to have painted on every motor vehicle owned by the
State, or by any county, or by any institution or
agency of the State, a statement that such car belongs
to the State or to some county, or institution or
agency of the State."
By statutory definition, an area mental health, mental retardationi
and substance abuse authority is a local political subdivision of the
State. (G.S. 122-35.36(1)). Title to the type of personal property
described in the present query is held by the area authority. (G.S.
122-35.53).
Prior opinions of the Attorney General have been consonant with
these statutory provisions (or their predecessors) and have been
based upon the premise that an area authority is a separate entity
from the State and from the county. See, 47 N.C.A.G. 8 (1977);
44 N.C.A.G. 185 (1975); 45 N.C.A.G. 120 (1975); 42 N.C.A.G.!
120 (1972); 45 N.C.A.G. 70 (1975). As a result, an area mental
health, mental retardation and substance abuse authority does not
fall within the provisions of G.S. 14-250.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
-56-
10 October 1979
Subject:
Requested by:
Questions:
Conclusions:
Social Services; Mental Health; Conflict of
Interest; Payment of Public Assistance to
Persons in Rest Homes
W. W. Speight
County Attorney for Pitt County
1
.
May payment of public assistance be
made for the care of a person in a home
for the aged, family care home, or other
domicihary facihty which is owned or
operated in whole or in part by an
employee of a State Alcoholic
Rehabilitation Center?
2. May payment of pubhc assistance be
made for the care of a person in a home
for the aged, family care home, or other
domiciliary facility which is owned or
operated in whole or in part by a
corporation of which an employee of a
State Alcoholic Rehabilitation Center is an
officer or a shareholder?
3. May payment of pubhc assistance be
made for the care of a person in a home
for the aged; family care home, or other
domiciliary facility which is rented from an
employee of an area mental health, mental
retardation and substance abuse authority?
1.
2.
No.
No.
Yes.
IG.S. 108-65.2, as amended by 1979 Session Laws, Chapter 702,
effective May 30, 1979, provides as follows:
-57-
"108-65.2. Limitations on payments-No payment of public
assistance under this Part shall be made for the care of any person
in a home for the aged, family care home, or other domiciliary
facility which is owned or operated in whole or in part by any
of the following:
1. a member of the Social Services Commission,
of any county board of social services, or of any board
of county commissioners;
2. an official or employee of the Department of
Human Resources or of any county department of
social services;
3. a spouse of a person designated in subdivisions
(1) and (2)."
The State Alcohohc RehabiUtation Centers are set up by the
Department of Human Resources and are an integral part of thatj
department. See G.S. 122-7.1. Since the chnical director is an
employee of the Department of Human Resources, the proscriptions:
of G.S. 108-65.2 apply to any home of the type described therein i
which is owned by that employee. Similarly, these prohibitions!
would also seem to apply to situations wherein an employee of an
Alcohohc Rehabilitation Center is an officer or a shareholder of
a corporation which owns or operates, in whole or in part, one
of these types of homes. That conclusion has been reached with
regard to the interpretation of the language of G.S. 14-234 and no
distinction can logically be made here. For prior opinions of this
Office in comparable situations, see 44 N.C.A.G. 128 1974), 42
N.C.A.G. 180 (1973); 42 N.C.A.G. 9 (1972); 40 N.C.A.G. 565
(1970); 40 N.C.A.G. 561 (1969).
On the other hand, an area mental health, mental retardation and
substance abuse authority is a local political subdivision of the State.
See G.S. 122-35.36(1)). As a result an employee of an area mentalj
health, mental retardation and substance abuse authority is not an
employee or an official of the State or of any county. See G.S.
122-35.45(b); 47 N.C.A.G. 8 (1977); 45 N.C.A.G. 70 (1975). Thus
the provisions of G.S. 180-65.2 would be inapphcable to such an
employee.
-58-
12 October 1979
Subject:
Requested by:
Questions:
Ll
Conclusions:
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
Mental Health; Mental Hospitals; Requiring
Residents to Participate in Fire Drills
Sarah T. Morrow, M.D., M.P.H.
Secretary
Department of Human Resources
1. In a fire-drill situation at a State
mental hospital is the staff authorized to
physically remove a non-consenting patient
from his ward?
2. In such a situation would it make
any difference if the patient were on
voluntary or involuntary status?
3. If the answer to question (1) is yes,
what degree of force should be utiHzed in
removing the patient?
1 Yes.
No.
3. Only a reasonable degree of force
under existing circumstances should be
utilized in removing the patient.
jit appears that the Life-Safety Code and accreditation standards vital
' 'to the operation and funding of State mental hospitals require that
internal disaster, fire and evacuation drills shall be held at least
quarterly for each work shift of program personnel in each separate
-59-
patient-occupied building. These questions are prompted by the
refusal, on occasion, of some patients to get out of bed and leave
the ward during such a drill.
The patients involved include some who are involuntarily committed
to the hospital by court order, others who are voluntarily admitted
upon their own request, and juveniles or other incompetents who
are voluntarily admitted with court ordered approval. In all of these
situations, the State occupies the position of parens patriae regarding
these residents; as a result, the State is responsible for the patient's
safety, health and welfare. Certainly the evacuation of all residents,
including those reluctant to participate would be necessary in order
to truly evaluate the adequacy of evacuation procedures. Thus, the
ability to require participation in the basic drills described is a
fundamental necessity in order to enable the fulfillment of the
State's responsibilities-for the short range purpose of immediate
protection of the residents involved as well as for the long range
purpose of insuring the continued operation of the hospitals in order? \
to care for present and future mentally ill persons. No distinctionj;
should be made on this score as to the right to refuse to participate
by the voluntarily admitted patient or those patients present!
pursuant to a court order. In other words, the remedy available]
to a purely voluntary competent patient, should he so desire, would-be
a request for discharge within the time hmitations levied by G.S.
122-56.3, not absolution from compliance with reasonable
requirements of the hospital.
In order to secure evacuation, reasonable force may be utilized. As.
an addendum, though, it would seem that the employees securing!
compliance should be persons trained in the handling of mentally'
ill patients who have performed similar functions in insuring'
compliance with other reasonable hospital directives. On aj
cautionary note, it should be recognized that any foreseeable injuryj
to the patients which is caused by undue force could well leavej
the hospital, the State and the individual employee vulnerable tcl
litigation seeking damages. '
Rufus L. Edmisten, Attorney General
WilHam F. O'Connell
Special Deputy Attorney General
-60-
23 October 1979
Subject:
i Requested by:
Social Services; Confidentiality of Public
Assistance Records; G.S. 108-45
Dr. Sarah T. Morrow, Secretary
North Carolina Department of Human
Resources
iQuestion:
bonclusion
:
Is it lawful, under applicable State and
federal laws and regulations, for a county
department of social services to disclose
names and other information concerning
persons receiving public assistance to the
Evaluation Section of the North Carolina
Department of Human Resources or its
contractual agent in order that an
evaluation and report on the expenditure
of State funds for the homemaker/chore
services program may be done?
Yes.
It is our understanding that the General Assembly of North Carolina
specifically requested an evaluation and report by the Department
of Human Resources on the expenditure of State funds for the
homemaker/chore services program provided under Title XX of the
Social Security Act. The responsibility for making this evaluation
and report has been assigned to the Evaluation Section of the
Department of Human Resources. In order to discharge this
iresponsibihty, the Evaluation Section will require access to the
records of Title XX public assistance recipients within the county
departments of social services.
Pursuant to the provisions set forth in Section 2003(d)(1)(B) of
the Social Security Act (42 U.S.C. § 1397b(d)(l)(B)), the federal
regulations found at 45 C.F.R. 205.50, and G.S. 108^5(a), public
assistance records generally (and Title XX records in particular) are
enveloped with confidentiahty except for purposes directly
:onnected with the administration of the various programs of public
assistance. It is our interpretation of these provisions that county
-61-
departments of social services may legally release names and other i
information concerning persons receiving Title XX public assistance
that are contained in the records of the department since the purpose '
for acquiring this information is without a doubt directly connected
|
with the administration of a program of public assistance (i.e., Title
XX). Moreover, in view of our conclusion, there is no need for the
county department of social services to obtain the consent of the 3
recipient prior to the release of the information sought.
|
We reach the same conclusion should the Evaluation Section decide
to contract with another agency outside the Department of Human
Resources to conduct the actual evaluation provided the contract
j
contains a provision prohibiting disclosure of the information *
gathered to third parties. The purpose in collecting the information
remains the same irrespective of who does the collecting,
j
Additionally, with the contractual prohibition against disclosure, the
agency conducting the evaluation is subject to standards of t,
confidentiality comparable to those governing the county j
departments of social services. Accordingly, under the authority of]
the federal regulation found at 45 C.F.R. §205.50(a)(2)(ii), it would
j be lawful for the county departments of social services to release Ij
to the contractor information concerning individuals receiving Title 1^
XX public assistance.
24 October 1979
Subject:
Requested by:
Rufus L. Edmisten, Attorney General
William Woodward Webb
Special Deputy Attorney General
Administrative Px rio»^c.e.»dsuuruievso ^Avc^tv;,
^
Department of Administration; Office of
the Governor; Division of State Budget and
Management; Budget Manuel
Administrative Rules Review Committee of
the General Assembly
-62-
Questions: 1. Is the budget manual of the Division
of State Budget and Management required
I
to be filed with the Attorney General?
2. Is the budget manual of the Division
of State Budget and Management subject
to the adoption and amendment procedural
requirements of the Administrative
Procedures Act?
Conclusion: 1. Yes, except for those parts already
I
-' filed or which are not rules.
i 2. Yes, except for those parts already
filed or which are not rules.
|. G.S. 150A-58, in relevant part, reads as follows:
(b) As used in this Article, "rule" means every rule,
regulation, ordinance, standard, and amendment
thereto adopted by any agency and shall include rules
and regulations regarding substantive matters,
standards for products, procedural rules for complying
with statutory or regulatory authority or requirements
and executive orders of the Governor.
r.S. 150A-59, in relevant part, reads as follows:
Rules adopted by any agency on or after February 1
,
1976, shall be filed with the Attorney General. All
rules shall become effective 30 days after fiHng, unless
the agency shall certify the existence of good cause
for, and shall specify, an earlier or later effective date.
An eariier effective date shall not precede the date
of filing.
I North Carohna Administrative Code 2A .0103 reads as
?"ollows:
ll The budget manual sets forth policies and procedures
to be followed by state agencies in preparing,
-63-
monitoring and executing the state's budget. Copies
of the budget manual shall be provided to the various
departments of state government and are available for
public inspection at the division office.
History Note: Statutory Authority G.S. Chapter
143,
Article 1
;
Eff. February 1, 1976;
Readopted Eff. February 27, 1979.
G.S. 150A-63, in relevant part, reads as follows:
(c) If the Attorney General determines that
pubUcation of any rule would be impracticable, he
shall substitute a summary with specific reference to
the official rule on file in his office.
Chapter 150A, the Administrative Procedures Act, has two separate
and distinct definitions of "rule." The definition in Article 5.
Publication of Administrative Rules, is more inclusive than the rule
making definition in Article 2, Rule Making, Regulations exempt
from the rule making article are not exempt from the pubhcation
article unless the regulation is exempted by G.S. 150A-58(b)(l^).
G.S. 150A-59 states no rule, as defined in G.S. 150A-58, may j
become effective any eariier than the date of filing with the Attorney
General.
The budget manual is a compilation of rules and regulations
developed by the Division of State Budget and Management which
sets forth pohcies and procedures state agencies must follow in
preparing, monitoring and executing the state's budget. An
examination of the contents of the manual discloses that it consists
of (1) reprints of General Statutes, (2) reprints of other sections
of the Administrative Code, and (3) regulations not contained in
other sections of the code. This last category includes regulations
developed by the Division of State Budget and Management which
are necessary to provide more specific procedures for complying with
the requirements of the General Statutes and the Executive Orders
of the Governor. The last category also contains the portions of
the budget manual which have not been filed with the Attorney
-64- ,
General. The rule on file, 1 N.C.A.C. 2A .0103, describes the budget
i manual and states it may be inspected in the division office. G.S.
1 150A-63(c) allows for a summary rule if the publication of a rule
'would be impracticable, but it requires the official rule must be
on file in the Attorney General's Office. Those portions of the
budget manual which are rules within the the meaning of G.S.
i 150A-58 and which have not previously been filed with the Attorney
i General must be filed with the Attorney General to be effective.
(2) In relevant part, G.S. 150A-9, reads as follows:
It is the intent of this Article to establish basic
minimum procedural requirements for the adoption,
amendment, or repeal of administrative rules ... No
rule hereafter adopted is vahd unless adopted in
substantial comphance with this article.
G.S. 150A-10, in relevant part, reads as follows:
As used in this Article, "rule" means each agency
regulation, standard or statement of general
applicabihty that implements or prescribes law or
poHcy, or describes the organization, procedure, or
practice requirements of any agency.
The term includes the amendment or repeal of a prior
rule but does not include the following:
(1) Statements concerning " only the internal
management of an agency and not affecting private
rights or procedures available to the pubhc;
(6) Interpretative rules and general statements of
policy of the agency.
G.S. 150A-12, in relevant part, reads as follows:
(f) No rule making hearing is required for the
adoption, amendment or repeal of a rule which solely
describes the organization of the agency or describes
forms or instructions used by an agency.
-65-
G.S. 150A-14, in relevant part, reads as follows:
An agency may adopt, by reference in its rules and
without publishing the adopted matter in full, all or
any part of a code, standard or regulation which has
been adopted by any other agency of this State or
any agency of the United States or by a generally
recognized organization or association.
G.S. 150A-2, in relevant part, reads as follows:
(1) "Agency" means every ... department, division,
council, member of Council of State, or officer of the
State Government of the State of North Carolina... '
!
Article 2, Rule Making has a definition of "rule" which varies
substantially from that of Article 5. The definition in G.S. ISOA-IO!
determines which regulations are subject to the procedural
requirements of Article 2, which include notice of hearing and public^
hearing prior to adoption. The two exemptions cited above, G.S.
150A-10(1) and (6), may include some of the unfiled portions of!;
the budget manual. In applying the definition of "rule," the
exemption created by G.S. 150A-10(1) should be limited to those
regulations concerning the internal management of the Division of
State Budget and Management. Some guidance on the exemption
created by G.S. 150A-10(6) is provided by Professor Charles E.;
Daye in his 1975 article entitled "North Carolina's New
Administrative Procedures Act: An Interpretive Analysis," 53 N.C.
Law Review 833-923, (1975). At page 853, it states:
"Generally speaking, interpretative rules carry no
sanction, and if a sanction is involved, it is seen as
emanating from the statute ... It should be emphasized
that careful scrutiny of the substance of the rule in
question is critical, since the interpretive rule
exclusion, if not confined to proper boundaries, could
well subsume the rulemaking provisions."
Finally, two separate statutory sections may exempt certain of thai
regulations of the budget manual from rulemaking or publication
in full. G.S. 150A-12(f) exempts any regulations which describe
-66-
"forms or instructions used by an agency." G.S. 150A-14 exempts
Tom publication in full any regulations adopted by another agency
bf the State which are adopted by reference. It should be noted
any regulations so adopted must be amended any time the
promulgating agency alters a regulation for the adopting agency to
maintain the same regulations or the promulgating agency.
'Each regulation in the budget manual must be individually examined
to determine (1) whether it is a rule within the meaning of G.S.
150A-10; (2) whether, although it is rule, it is exempted from the
rule making requirements by G.S. 150A-12(f); and (3) whether it
was adopted by reference and thereby exempt from pubhcation.
When the manual was developed, the Division of State Budget and
Management was a part of the Department of Administration. By
Executive Order 38, that division was transferred to the Office of
the Governor on September 10, 1979. Both the Governor's Office
and the Department of Administration are agencies within the
statutory definitions of "agency" m G.S. 150A-2(1) and G.S.
;150A-58(c) and are required to comply with Article 2, Rule Making,
and Article 5, Publication of Administrative Rules, to the same
extent as are other agencies not specifically exempted.
Rufus L. Edmisten, Attorney General
Daniel F. McLawhom
Assistant Attorney General
25 October 1979
Subject:
Requested by:
Mental Health, Area Mental Health, Mental
Retardation and Substance Abuse
Authorities; Use of proxy votes at Area
Mental Health, Mental Retardation and
substance abuse Board Meetings.
Mr. Mansfi

THE LIBRARY OF THE
UNIVERSITY OF
NORTH CAROLINA
AT CHAPEL HILL
THE COLLECTION OF
NORTH CAROLINIANA
C3U0
N87a
1979/80
UNIVERSITY OF N.C. AT CHAPEL HILL
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00033947427
FOR USE ONLY IN
NORTH CAROLINA COLLECTION
NORTH CAROLINA
ATTORNEY GENERAL REPORTS
Volume 49
Number 1
FUS L. EDMISTEN
TORNEY General
\9 N.C.A.G. No. 1 Pages 1 through 90
NORTH CAROLINA
ATTORNEY GENERAL
REPORTS
Opinions of the Attorney General
July 1, 1979 through December 31, 1979
MAILING ADDRESS:
Post Office Box 629
Raleigh, North Carolina 27602
Digitized by tine Internet Arciiive
in 2011 witii funding from
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RUFUS L. EDMISTEN /^7'9A
Attorney General
James F. Bullock Andrew A. Vanore, Jr.
Senior Deputy Senior Deputy
Attorney General Attorney General
Robert Bruce White, Jr.
Senior Deputy Attorney General
Jean A. Benoy William M. Melvin
Deputy Attorney General Deputy Attorney General
Millard R. Rich, Jr.
Deputy Attorney General
Charles H. Smith Howard A. Kramer
Administrative Deputy Deputy Attorney General
Attorney General for Legal Affairs
John A. Elmore, II
Special Assistant to the Attorney General
Isaac T. Avery, III Thomas F. Moffitt
Myron C. Banks Charles J. Murray
Lester V. Chalmers, Jr. William F. O'Connell
H. Al Cole, Jr. WOliam A. Raney, Jr.
T. Buie Costen James B. Richmond
David S. Crump Jacob L. Safron
Ann Reed Dunn "
Eugene A. Smith
Herbert Lamson, Jr. Edwin M. Speas, Jr.
Richard N. League WilHam W. Webb
John R. B. Matthis
Special Deputy Attorney General
Archie W. Anders
Rudolph A. Ashton, III
Rebecca R. Bevacqua
David R. Blackwell
George W. Boylan
Jean W. Boyles
William F. Briley
Elisha H. Bunting, Jr.
Elizabeth C. Bunting
Henry H. Burgwyn
Joan H. Byers
James M. Carpenter
Christopher S. Crosby
John C. Daniel, Jr.
Thomas H. Davis, Jr.
Amos C. Dawson, III
Roy A. Giles, Jr.
Frank Graham
Richard L. Griffin
Donald W. Grimes
Guy A. Hamlin
Norma S. Harrell
Claude W. Harris
Ralf F. Haskell
Charles M. Hensey
Alan S. Hirsch
LB. Hudson, Jr.
Ben G. Irons, II
Douglas A. Johnston
Sandra M. King
George W. Lennon
James R. Lore
James E. Magner, Jr.
Daniel F. McLawhom
Nonnie F. Midgette
Mary I. Murriell
Dennis P. Myers
Robert W. Newson, III
Daniel C. Oakley
George J. Oliver
WilUam B. Ray
Robert R. Reilly
Marilyn Y. Rich
Alfred N. Salley
Jo Ann Sanford
Marvin Schiller
Tiara B. Smiley
James P. Smith
Donald W. Stephens
James L. Stuart
Jane R. Thompson
J. Gregory Wallace
Acie L. Ward
Kaye R. Webb
Robert G. Webb
Thomas B. Wood
Assistant Attorneys General
Benjamin G. Alford
Sylvia X. Allen
Christopher P. Brewer
Blackwell M. Brodgen, Jr.
Steven F. Bryant
Robert E. Cansler
Lucien Capone, III
Richard H. Carlton
Evelyn M. Coman
Francis W. Crawley
Chfton H. Duke
Fred R. Gamin
Max A. Gamer
Michael D, Gordon
Jane P. Gray
James C. GuHk
Elaine M. Guth
Richard D. Hancock
Harry H. Harkins, Jr.
Robert L. Hillman
Lemuel W. Hinton
Grayson G. Kelley
Richard L. Kucharski
Barry S. McNeill
Thomas G. Meacham
Mary E. Noonan
John C. Prather
Steven M. Shaber
WilUam L. Shenton
Michael W. Taylor
Roger B. Wall
Reginald L. Watkins
Sarah C. Young
Thomas J. Ziko
Associate Attorneys
2 July 1979
Subject: Motor Vehicle; Rules of the Road; Passing
Where There are Solid Center Lines
Requested by: Claire McNaught
Public Safety Attorney
Winston-Salem, N. C.
Question: Are solid center lines considered "markers"
under G.S. 20-1 50(e)?
Conclusion: Yes. As of July 1, 1979, soHd center lines
are "markings" under G.S. 20-1 500(e)
(Chapter 472, 1979 Session Laws, H.B.
1064).
Chapter 472 of the 1979 Session Laws (H.B. 1064) amended
G.S. 20-1 50(e) effective July 1, 1979 to read:
"The driver of a vehicle shall not overtake and pass
another on any portion of the highway which is
marked by signs, markers or markings placed by the
Department of Transportation stating or clearly
indicating that passing should not be attempted."
(Emphasis added)
The 1 979 amendment estabHshes a mandatory duty to obey highway
markings placed there by the Department of Transportation. The
North Carolina Highway Marking Manual and Supplement (1978)
Section 4A-7 outlines the pavement markings for no passing zones.
Solid yellow center lines shall indicate no passing zones at specified
intersections and on specified grades and curves.
The North Carolina Department of Transportation's Drivers
Handbook under Rules of the Road states:
"There are some places where passing is always unsafe
\ and usually against the law. Passing should not be
tried: ... 4. Whenever there is a solid yellow line in
your lane."
-1-
G.S. 20-1 50(e), as amended, prohibits passing on solid yellow center
lines as they constitute "markings placed by the Department of
Transportation stating or clearly indicating that passing should not
be attempted."
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
31 July 1979
Subject:
Requested by:
Question:
Conclusion:
Social Services; Child Support;
International Reciprocal Enforcement of
Support ObUgations
Robert H. Ward, Director
Social Services Division
Department of Human Resources
Is the Nation of West Gennany a foreign
jurisdiction which has a substantially
similar support law such that reciprocal
enforcement may be effectuated under the
North Carohna uniform reciprocal
enforcement of support act (N.C. Gen.
Stat. 52A-1 to 52A-32)?
Yes.
i
I
The Uniform Reciprocal Enforcement of Support Act (hereinafter
referred to as URESA) is codified in the North Carolina General
Statutes under Chapter 5 2A. As stated in 52A-2, the purposes of
the Chapter "are" to improve and extend by reciprocal legislation
the enforcement of duties of support and to make uniform the law
with respect thereto."
It is clear that URESA is a uniform law, reciprocal in nature and
purpose and should be liberally construed to effectuate its purpose
to accomplish and enforce the duty of a parent to support his
children. Kline v. Kline, 542 S.W.2d 499 (1976).
The purpose of URESA is to provide a prompt expeditious way
of enforcing the duty to support minor children without getting
the parties involved in complex collateral issues. Thompson v. Kite,
522 P.2d 327 (1974).
URESA was designed to provide economical and expedient means
of enforcing support orders for parties who are located in different
states or jurisdictions. Rainey v. Rainey, 536 S.W.2d 617 (1976).
From the very onset of its first adoption in the early fifties, it has
been clear that URESA has been a success and the various states
have adopted it, as well as its amendments, quite readily. The act
seeks to apply an equitable and expeditious method of dealing with
the complex problems involved. As stated in the Family Law
Reporter, 4 FLR 4017, May 2, 1978:
"URESA was a recognition by the states that problems
of child and spousal support were no longer a purely
local concern. Conventional judicial proceedings were
simply unsuitable for effective enforcement of support
orders because the absent spouse was normally outside
the jurisdiction of the dependent's state courts,
because the stay-at-home spouse could rarely afford
to track down and sue the absent spouse in another
jurisdiction, and because the federal courts have
traditionally been closed to domestic relations
actions .... URESA is an attempt to provide a
consistent statutory mechanism for the interstate, and
occasionally international, enforcement of support
decrees without forcing the person seeking support to
bring the action in the absent spouse's
jurisdiction .... Even though the typical URESA
proceeding involves an obligee in one state and an
obligor in another state, the act's mechanism may also
be used within a state on a county-to-county basis,
and is occasionally used in support enforcement cases
which cross national boundaries." (P. 4017)
-3-
In conference at the September, 1967, meeting of the National
Conference on the Uniform Reciprocal Enforcement of Support Act,
the central committee decided that it would be far more desirable
to have state action on reciprocity with foreign jurisdictions than
to seek federal involvement. Basically, this was due to the belief
that the federal government would be reluctant to delve into matters
relating to family law coupled with the additional problem as to
which federal agency could properly and effectively represent the
various states. Thus it was left to the individual states to broaden
the definition in their statutes to include foreign nations. This was
accomplished by a re-examination of the statutory definitions of
URESA.
As a result, in 1968 URESA was rewritten such that the definition
of "State" in the revised resion of URESA (called RURESA) was
expanded to include "any foreign jurisdiction in which this or a
substantially similar reciprocal law is an effect."
In 1971 , the Council of State Governments on completion of a study
of URE5A found that nineteen states had provisions in their acts
which permitted reciprocity with other nations. North Carolina was
not among those enumerated. In this regard, it is noted that North
Carolina General Statute 52A-3(8) in 1971 provided that a "State"
included "any state, territory, or possession of the United States,
and District of Columbia, in which this or a substantially similar
reciprocal law has been enacted." Therefore, it is clear that prior
to 1975, the North Carolina definition of "State" excluded anything
other than a state, territory, or possession of the United states in
which a reciprocal law was in effect.
In order to correct the limited scope of the statute and to broaden
the definition of "State", in 1975 the statute was amended so that
the definition of "State" now includes any "state, territory, or
possession of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the provinces of Canada in which
reciprocity can be effected by administrative action, and any foreign
jurisdiction in which this or a substantially similar reciprocal law
is in effect:' See N.C. Gen. Stat. 52A-3(13).
Obviously, the North Carolina Legislature intended that the statute
as amended should include foreign nations which have a substantially
similar reciprocal law within the scope of URESA. Proceeding under
the new amendments, North Carolina has recently begun to enforce
support laws with Ontario, Canada and thus support duties are now
being enforced on behalf of North Carolina residents against
residents of Ontario, and vice versa. The amendment made in 1975
clearly evidences legislative intent that the same procedure is
permissable with other foreign nations.
It should be noted that the objection to reciprocity with a foreign
nation on the grounds that international enforcement violates the
constitutional prohibition against individual states entering into
treaties with foreign governments has been considered and rejected
in at least one case. See Blouin v. Dembitz, 367 F. Supp. 415,
D.N.Y.; aff'd 489 F.2d 488 (2d Cir. 1973). In Blouin, supra, the
Court held that the statute has reciprocal effect and grants to the
foreign jurisdiction the same procedural remedies in New York
Courts as the foreign state grants to our citizens. The Court further
held that it was not a compact with a foreign government, nor did
the statute disrupt or embarrass our relations with other countries.
Pp. 417-418.
A review of the law of West Germany reveals that the support laws
there are substantially similar to those which exist in North CaroHna
and, in fact, often are broader than our own. For example, the
obhgation to support includes legitimate and illegitimate children
up until age eighteen. There is no statute of hmitations for the
establishment of paternity. The amount of support is determined
by financial need of the child and the ability of the parent to pay.
Foreign orders estabhshing paternity and/or support are recognized
and can be enforced in German courts or, if no judgment exists,
a standard URESA petition may be sent to the German authorities
who will seek to have a suitable order entered in Germany.
Enforcement is through contempt proceedings similar to those
followed in North Carolina. Thus, it is clear that the 1 a w of West
Germany is "substantially similar" to our own.
In other states which have considered this problem, notably
California and Oklahoma, we find that the term "State" is defined
in the same manner as it is in North CaroHna. Both Oklahoma and
California have determined that West Germany is a reciprocating
nation within the ambit of URESA and have granted reciprocity.
Further, the West German Child Support authorities have indicated
through correspondence that they are wilhng to reciprocate in the
handhng of support matters.
In summary, based on the history of URESA, the legislative intent
as evidenced by recent amendments and action by the various states
which have considered this problem, it is apparent that our Chapter
52A intends that any foreign nation which has a substantially similar
support law should be granted reciprocity and that West Germany
falls within the statutory definition.
Rufus L. Edmisten, Attorney General
Henry H. Burgwyn
Associate Attorney
7 August 1979
Subject
:
Requested by:
Question:
Conclusion:
Public Officers and Employees; Conflict of
Interest; Remuneration of Area Board
Member for Services Rendered to Program
Under Contract With Area Authority
Sarah T. Morrow, M.D., M.P.H., Secretary
Department of Human Resources
Is it allowable under the General Statutes
for a member of an Area Mental Health
Board to contract his services to a program
which is under contract by the Area
Authority?
Contract for remuneration for services as
described would appear to violate
G.S. 14-234.
I
This question appears to have arisen because of the specific method
of operation of group homes under the auspices of area mental
health authorities in this state. An area mental health authority is
a local governmental entity responsible for the delivery of mental
-6-
health, mental retardation, etc. services within its geographic situs,
with an area mental health board serving as its governing body. See
Article 2F, Chapter 122. In delivering some of these services, an
area authority customarily contracts with a group home which is
operated by a non-profit corporation. The situation under scrutiny
involves remuneration of an attorney who is a member of the area
mental health board, but has rendered services to the group home.
G.S. 14-234, in essence, proscribes any public official from making
any contract for his own benefit under authority of his office.
Lexington Insulation Company v. Davidson County, 243 N.C. 252
(1955). Thus, it is very clear that the attorney-board member could
not contract with the board for his own services. 40 N.C.A.G. 566
(1969). However, the present situation is somewhat more
compHcated of resolution.
This Office has previously held to be forbidden contracts between
governmental boards and a private business when a member of the
board is also a partner of the business or an officer or stockholder
in a corporation operating the business. See 44 N.C.A.G. 128 (1974);
42 N.C.A.G. 180 (1973); 42 N.C.A.G. 9 (1972); 40 N.C.A.G. 565
(1970); 40 N.C.A.G. 561 (1969); 41 N.C.A.G. 371 (1971).
Conversely, where a board member is merely an employee of the
other contracting party with no pecuniary benefit flowing directly
to him as a person, the situation falls outside the ambit of
G.S. 14-234. State v. Debnam, 196 N.C. 740 (1929); 44 N.C.A.G.
293 (1975); 40 N.C.A.G. 565 (1970). (It should be noted that one
prior member of the Supreme Court of North Carohna has had
occasion to describe even a case involving only an employee of a
contracting party as "...not altogether seemly, nor to be
commended..." State v. Weddell, 153 N.C. 587, at page 590 (1910))
The situation presented does not squarely fall into any of the factual
settings dealt with in prior opinions of this Office. However,
G.S. 122-35.43 requires the Area Authority (through its board) to
review and evaluate the area needs and programs and to develop
the annual plan for utilization of facilities and resources; this plan
must include the inventory of services to be provided and must set
forth an indication of the expenditure of all funds by the Authority.
G.S. 122-35.43. Consonant with these responsibilities, the Area
Authority must submit a budget report indicating the receipts and
-7-
expenditures for the total area mental health program.
G.S. 122-35.44.
This particular situation, which has been characterized as a typical
development if the question posed is answered in the affirmative,
points up the probability of a conflict with the statute due to normal
methods of operation. As described, what would be envisaged here
is a transfer of specific funds into a proper line item in order to
remunerate the attorney for services rendered, with the area board
approving such transfer. Thus, in application, regardless of the
absence of any improper motives on the part of any party, this
type of transaction would indisputably present the appearance of
evil and would appear to amount to a direct violation of
G.S. 14-234.
Rufus L. Edmisten, Attorney General
WiUiam F. O'Connell
Special Deputy Attorney General
9 August 1979
Subject: Education; Articles 3 2A, 32B and
§115-166 of the North Carolina General
Statutes; Home Instruction of a Child in
Lieu of Attending a Public School.
j
Requested by: Mr. George T. Rogister, Jr.
Attorney for the Wake County Board of
Education
Questions: 1. Does home instruction of a child
qualify as "a school of religious charter"
or as a "nonpubhc school" as used in
Articles 32A and 32B of Chapter 115 of
the North Carolina General Statutes?
2. Is the instruction of a child by a
tutor in a private home, instruction in a
"private school" as contemplated in the
Compulsory Attendance Law, N.C.G.S.
115-166?
Conclusions: 1. No.
2. No.
The 1979 Session of the General Assembly amended Chapter 115
of the General Statutes to add two new articles, Articles 32A and
32B, both of which have the effect of Umiting the authority of
the State Board of Education to regulate the educational programs
of nonpubhc schools providing instruction to children of compulsory
attendance age. Chapters 505 and 506 of the 1979 Session Laws.
The enactment of this legislation has stirred interest in home
instruction as an alternative to the education of children in either
public or private schools.
This Office has previously ruled that home instruction does not
suffice to meet the requirements of the Compulsory Attendance
Law, G.S. 115-166, et seq., 40 N.C.A.G. 211 (1969). George P.
Rogister, Jr., Attorney for the Wake County Board of Education,
has requested a reconsideration of this earlier opinion in light of
recently enacted Articles 32A and 32B of Chapter 115. The specific
question posed is whether home instruction is encompassed within
the meaning of the word "school" as used in those Articles.
Any discussion of the impact of legislation on education in North
CaroUna is necessarily directed by several provisions of our
Constitution. The appropriate role of the State in the education
of its citizens is clearly set forth as follows:
"The people have a right to the privilege of education,
and it is the duty of the State to guard and maintain
that right.
N.C. Const. Art. 1, §15
Religion, morality and knowledge being necessary to
good government and the happiness of mankind,
schools, libraries, and the means of education shall
forever be encouraged.
N.C. Const. Art. IX, §1
The General Assembly shall provide that every child
of appropriate age and of sufficient ability shall attend
the public schools, unless educated by other means."
N.C. Const. Art. IX, §3
There can be no doubt that the North Carolina Constitution not
only requires education to be encouraged, indeed it places on the
State the duty to ensure that the people, most particulary the
children, are educated. Any legislation which the General Assembly
approves in the area of education must be read in the light of this
constitutional mandate. "Every statute is to be considered in the
light of the Constitution, and with a view to its intent." State v.
Emery, 224 N.C. 581, 585, 31 S.E. 2d 858 (1944).
Articles 32A and 32B are similar in that they both substantially
limit the State's regulatory authority over nonpubhc schools. Article
32A deals specifically with "private church schools and schools of
religious charter," while article 32B addresses all "qualified
nonpubhc schools." In substance, the regulatory scheme is the same
for schools falling under either Article 32A or 32B.
The word "school" is not defined in either of these Articles. The
authors of the legislation set forth in Article 32B, however, did hst
the types of schools which shall qualify as "nonpublic schools".
"The provisions of this Article shall apply to nonpublic
schools which:
(a) shall be accredited by the State Board of
Education; or
(b) shall be accredited by the Southern
Association of Colleges and Schools; or
(c) shall be an active member of the North
CaroUna Association of Independent
Schools; or
(d) receives no funding from the State of
North Carolina." N.C.G.S. 115-257.8.
-10-
It may be inferred from the list set forth that the legislature intended
only established educational institutions, whether religious or
secular, to fall within this article. All schools which would be
included in subsections (a), (b), or (c) are institutions consisting
of several teachers, classes of children of varying ages, a recognized
and accountable administration, and a regular place for meeting.
Subsection (d) is a general term, following a list of specific ones.
I
"In the construction of statutes, the ejusdem generis rule is that
jwhere general words follow a designation of particular subjects or
things, the meaning of the general words will ordinarily be presumed
to be and construed as, restricted by the particular designations and
as including only things of the same kind, character and nature as
jthose specifically enumerated." State v. Fenner, 263 N.C. 694, 697,
|140 S.E. 2d 349 (1965). Accordingly, we believe the references to
ischools in subsection (d) to include only estabhshed educational
iinstitutions.
Sit was then apparently the intent of the legisture in enacting these
[Articles to include only estabhshed and identifiable institutions
within the operation of these deregulatory Articles. The intent of
the legislature is, of course, controlhng in the interpretation of
a statute. State v. Hunt, 287 N.C. 76, 213 S.E. 2d 291 (1975).
We are of the opinion that home instruction of a child cannot
reasonably be interpreted as instruction in an estabhshed and
identifiable educational institution as contemplated in Articles 32A
and 32B. This opinion is buttressed by the failure of the legislature
to specifically include home instruction in these Articles, a failure
we deem of particular significance given the constitutional duty of
the legislature to "guard and maintain" the right of the people "to
the privilege of an education."
In addition to evaluating the impact of Articles 32A and 32B upon
our earlier opinion that home instruction did not suffice to meet
the requirements of the Compulsory Attendance Law, we have
reexamined the statutory and decisional law which formed the basis
of that opinion. G.S. 115-166, the statute upon which the earlier
opinion was based, has not been amended since 1969 and there
has been no court decision in North Carolina or any other
jurisdiction which would cause us to change our earlier opinion.
Accordingly, it is and remains the opinion of this Office that a parent
does not neet the requirements of the Compulsory Attendance Law
by providing liis child with instruction in the home.
-11-
Rufus L. Edmisten, Attorney General
Edwin M. Speas, Jr.
Special Deputy Attorney General
13 August 1979
Subject:
Requested by:
Question:
Conclusion:
Health; Imposition of Fee for Issuance of
a Permit
Thomas R, Dundon
Health Director
Forsyth County
May a local board of health impose a fee
pursuant to G.S. 130-1 7(e) for the issuance
of a permit pursuant to authority delegated
by the Department of Human Resources?
No.
The Commission for Health Services is created by G.S. 143B-142
and is granted certain powers and duties to promulgate rules
concerning the pubhc health. The Commission is authorized to adopt
rules governing food and lodging establishments, sewage disposal,
public water systems, solid waste management, mass gatherings and
numerous other matters affecting the public health. The Department
of Human Resources is charged with the responsibility of enforcing
the State health laws and rules by G.S. 130-11(1). Additionally,
the Department may obtain assistance from local health departments
in enforcing the health laws and rules. G.S. 143B-142(4) provides
in part that "When directed by the Department of Human Resources,
local health departments shall enforce Commission for Health
Services' rules and regulations under the supervision of the
Department of Human Resources." The Department, pursuant to
authority contained in G.S. 130-l(d), has authorized individual
sanitarians employed by local health departments to enforce State
health laws and rules. The individual sanitarians are issued
identification cards pursuant to G.S. 128-14.
-12-
Local boards of health are also authorized to make rules and
regulations as are necessary to protect the public health. Such rules
and regulations may be more stringent than State rules where there
is an emergency or "pecuUar local condition or circumstance."
Otherwise, where there is conflict, the State rules prevail over the
local rules and regulations. An exception is provided by G.S.
;1 30-1 60(b) wherein the local health boards' rules and regulations
'governing sewage disposal may be approved by the Commission for
Health Services and thereafter enforced by the local health
departments instead of the State sewage disposal rules.
The question presented herein arises because G.S. 130-1 7(e) provides
{a procedure whereby the local health departments may impose fees
for services rendered. A fee plan must be recommended by the local
health director and then approved by the local health board and
the appropriate board or boards of county commissioners. The fee
is hmited to "services voluntarily rendered and voluntarily received,
but shall not apply where the charging of a fee for a particular
service is specfically prohibited by statute, regulation or ordinance."
An example of a prohibitory statute is G.S. 130-88, as rewritten
by Chapter 56, 1979 Session Laws, which provides in part that "The
local health department shall administer the required immunizations
without charge." Interpretation of the first phrase "voluntarily
rendered and voluntarily received" is assisted by examination of
Chapter 508, 1973 Session Laws, which substituted the present
language "but shall not apply where..." for the prior language "and
shall not apply to services required by statute, regulation, or
ordinance to be rendered or received." Under the prior language,
the local health departments were not authorized to charge a fee
for issuance of a permit, for example, for installing a septic tank
system because local health regulations required that the site be
inspected and permit be issued before the septic tank installed.
Under the present language, charging a fee is authorized because,
although the permit is still required, charging of a fee is not
specifically prohibited. Therefore, in order to give effect to the 1973
amendment, voluntariness cannot be negated merely because
inspection and issuance of a permit is required before one undertakes
a certain activity. Rather, voluntariness means that one freely applies
for a service from the local health department such as the issuance
of a permit for a septic tank system.
-13-
Although a local health department may impose a fee for services
rendered, the question remains whether the department may impose
a fee for inspections performed and permits issued at the direction
of the Department of Human Resources. Chapter 130 of the General
Statutes, which contains most of the public health laws, specifically
authorizes the collection of fees by the Department of Human
Resources for certain services but is silent concerning the remaining
services. For example, G.S. 130-166.55, enacted by Chapter 788,
1979 Session Laws, imposes certain fees for analysis of water
samples; G.S. 130-243 requires a one hundred dollar fee to
accompany an application for a mass gathering permit; G.S. 130-177
imposes a permit fee on bedding manufacturers; and G.S . 130-166
authorizes the collection of fees for the issuance of certified copies
of birth and death certificates. On the other hand, no fee is
authorized for solid waste disposal regulation (G.S. 130-166.16 et
seq.), for sewage disposal regulation (G.S. 130-160) or food and
lodging establishment inspections (G.S. 72-46 et seq.). Furthermore,
there is no general authority equivalent to G.S. 130-1 7(c) for the
Department of Human Resources to impose a fee for services
rendered. In fact. Chapter 559, 1979 Session Laws, effective May 1,
1981, states that "the legislative grant of authority to an agency
to make and promulgate rules shall not be construed as a grant
of authority to the agency to establish by rule a fee or a charge
for the rendering of any service or fulfilling of any duty to the
public, unless the statute expressly provides for the grant of
authority to establish a fee or charge for that specific authority."
"Agency" is defined to include every State department, institution
or agency but to exclude counties and cities.
Construing the foregoing Laws, it is the opinion of this Office that
the authority of the Department of Human Resources to impose
fees in matters pertaining to the public health is hmited to those
matters which are expressly authorized by statute. In enforcing State
health laws and rules, the local health departments are acting at
the direction of the Department of Human Resources, and the local
sanitarians are acting as the authorized agents of the Department.
Therefore, when local health departments are enforcing State health
laws and rules, they are subject to the same hmitations as the
Department of Human Resources and may only collect fees
specifically authorized by statute. When local health departments
^
enforce local rules and regulations, they may collect fees authorized
-14-
by the local board of health pursuant to G.S. 130-1 7(e).
j
Rufus L. Edmisten, Attorney General
! Robert R. Reilly
"- Assistant Attorney General
13 August 1979
Subject:
{Requested by:
Question:
Conclusion
:
Security Guards; Concealed Weapons
Mr. Haywood R. Starling, Director
N. C. State Bureau of Investigations
Is it lawful for a registered security guard
to carry a concealed weapon while
performing his contractual duties within
the confines of a building which is not
owned by either the security guard or the
contracting security company by which he
is employed?
No.
^. registered security guard is not permitted to carry a concealed
tveapon.
"§14-269. Carrying concealed weapons. - If anyone,
except when on his own premises, shall willfully and
intentionally carry concealed about his person any
bowie knife, dirk, dagger, sling shot, loaded cane,
brass, iron or metallic knuckles, razor, pistol, gun or
other deadly weapon of Hke-kind, he shall be guilty
of misdemeanor punishable by a fine not to exceed
five hundred dollars ($500.00), imprisonment for not
more than six months, or both. This section shah not
apply to the following persons: Officers and enlisted
personnel of the armed forces of the United States
when in discharge of their official duties as such and
acting under orders requiring to carry arms or
15-
weapons, civil officers of the United States while in
discharge of their official duties, officers and soldiers
of the militia and the State guard when called into
actual service, officers of the State, or of any county,
city, or town, charged with the execution of the laws
of the State, when acting in the discharge of their
official duties, provided, however, full-time sworn law
enforcement officers may carry a concealed weapon
when off-duty in jurisdiction where assigned if so
authorized by written regulations of the law
enforcement unit, which must be filed with the clerk
of court in the county where the law enforcement unit
is located, provided further, that no such regulation
shall permit the carrying of a concealed weapon while
the officer is consuming or under the influence of
intoxicating liquor."
The registered security guard is not in a class specifically exempted f
in G.S. §14-269 from the statutory prohibition against carrying a
concealed weapon off ones own premises. The right to carry a
concealed weapon off ones own premises is limited to officers of
the military and the various governments in the discharge of their
official duties and only with special permission and limitations when
off duty. G.S. §14-269.
The business of furnishing protection for private premises has
expanded rapidly in recent years. Employees of companies
contracted to provide security have generally replaced the company
night watchman. The security guard on duty often has no direct
contact with the owners or possessors of the premises. He simply
patrols whichever premises he is directed to by the company. These
security guards have no interest nor dominion over the land but
are mere employees furnishing security.
The General Assembly in the 1979 Session (Chapter 818) rewrote
the 1973 Private Protective Services Act as Chapter 74 C. of the
General Statutes, This act requires the hcensing of all persons, firms,
associations and corporations in any manner working in private
protective services. A security guard or night watchman is clearly
within the scope of the act. G.S. §74C-3. This act establishes a
Private Protective Services Board to set educational and training
-16-
requirements for all those in the private protective services business
and to administer the licensing of those complying.
The act sets requirements for the registration of all armed security
guards which includes the completion of a basic training course on
legal Umitations on the use of hand guns and on the powers and
authority of an armed private security officer. G.S.
§74C- 13(h)(1)(a). The registration permit authorizes the armed
security officer, "while in the performance of his duties or traveling
directly to and from work, to carry a standard .38 calibur or .32
caUbur revolver or any other firearm approved by the board and
not otherwise prohibited by law." G.S. §74C-1 3(b)(1).
The contention that a man driving in his own car on a public
highway is on his own premises as to G.S. §14-269 has been
specifically rejected. State v. Gainey, 273 N.C. 620 (1968). This
section nor any other section in the act allows a private security
officer to carry a concealed weapon while on business, traveling to
and from business, or at any other time.
In passing the Private Protective Services Act, the legislature puts
strict requirements and regulation procedures on the business of
private protective services. The act clearly spells out the firearms
rights secured through a registration permit. While this statute in
no way affects the right of citizens to openly bear arms, it does
put restrictions on those furnishing private protective services. The
statute does not authorize a security agent to exceed the statutory
limitations on the carrying of concealed weapons.
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
28 August 1979
Subject: Criminal Law and Procedure; Youthful
Offenders; Expungement; Records and
Recording Laws.
17-
Requested by: The Honorable Russell G. Walker, Jr.
District Attorney
Nineteenth-B Prosecutorial District
Question: Where a person under the age of 18 years,
^ • who has not previously or subsequently
been convicted of any offense, is charged
with several misdemeanor offenses, the
charges are consolidated for trial and
judgment, and the sentence imposed is
within the statutory limit for conviction of
a single offense, may the court order if
expungement of the record pursuant to
]
G.S. 15-223? Ij
Conclusion: ; Yes.
The clerks of superior court of the State are required by law to ;j
maintain certain records, including records of criminal actions and \
juvenile actions, G.S. 7A-180. These records are open to public i
inspection, G.S. 7A-109; 132-1, et seq., and are the property oft
the people of the State. State v. West, 293 N.C. 18, 235 S.E.2d j
150 (1977). While courts have the inherent power and duty to take
\
such action as is necessary to make their records speak the truth, i
State V. Old, 271 N.C. 341, 156 S.E.2d 756 (1967); Mallard,^
"Inherent Power of the Courts of North Carolina," 10 Wake Forest j
L. Rev. 1, 22 (1974), they are without authority to annul or expunge
an accurate record, or the records of another agency of government,
absent the authority of statute. State v. Bellar, 16 N.C.App. 339,
|
192 S.E.2d 86 (1972). In this State, a person arrested, though in
error, has no right to have the fact of his arrest removed from his
criminal record except as authorized by statute, see Session Laws f'
1979, Chapter 6\, compare Code of South Carolina of 1976 17-1-40,
though there may be, in some jurisdictions, a right to restrict access •
to or use which may be made of such erroneous arrest record, see \'
generally, 28 C.F.R., Part 20; Anno., "Right of Exonerated arrestee i
to Have Fingerprints, Photographs, or Other Criminal Identification \
or Arrest Records Expunged or Restricted," 46 A.L.R.3d 900
(1972). Court records are protected by law from wrongful
disposition or destruction, G.S. 14-76; 132-3,-9. Thus, statutes such
as G.S. 15-223, 15-223.1, 90-96 and 90-113.14 are an exception
-18-
to the general prohibition of expungement or alteration of
records which speak the truth.
G.S. 15-223 provides:
"§15-223. Expunction of records for first offenders
under the age of 18 at the time of conviction of
misdemeanor.~(a) Whenever any person who has not
yet attained the age of 1 8 years and has not previously
been convicted of any felony, or misdemeanor other
than a traffic violation, under the laws of the United
States, the laws of this State or any other state, pleads
guilty to or is guilty of a misdemeanor other than a
traffic violation, he may file a petition in the court
where he was convicted for expunction of the
misdemeanor from his criminal record. The petition
cannot be filed earlier than two years after the date
of the conviction or any period of probation,
whichever occurs later, and the petition shall contain,
but not be limited to, the following:
1
.
An affidavit by the petitioner that he has
been of good behavior for the two-year
period since the date of conviction of the
misdemeanor in question and has not
been convicted of any felony, or
misdemeanor other than a traffic
violation, under the laws of the United
States or the laws of this State or any
other state.
2. Verified affidavits of two persons who are
not related to the petitioner or to each
other by blood or marriage, that they
know the character and reputation of the
petitioner in the community in which he
lives and that his character and reputation
are good.
3. A statement that the petition is a motion
- in the cause in the case wherein the
petitioner was convicted.
-19-
4. Affidavits of the clerk of superior court,
chief of police, where appropriate, and
sheriff of the county in which the i
petitioner was convicted and, if different,
j
the county of which the petitioner is a|l
resident, showing that the petitioner has I
not been convicted of a felony or'
misdemeanor other than a traffic violation !
under the laws of this State at any time
prior to the conviction for the
misdemeanor in question or during the
two-year period following that conviction,
j
The petition shall be served upon the district attorney
of the court wherein the case was tried resulting in
conviction. The district attorney shall have 10 days
thereafter in which to file any objection thereto and
shall be duly notified as to the date of the hearing
of the petition.
The judge to whom the petition is presented is
authorized to call upon a probation officer for any;
additional investigation or verification of the
petitioner's conduct during the two-year period thatji
he deems desirable.
(b) If the court, after hearing, finds that the
petitioner had remained of good behavior and been
free of conviction of any felony or misdemeanor, otherj
than a traffic violation, for two years from the date
of the conviction of the misdemeanor in question, and
petitioner was not 18 years old at the time of the|
conviction in question, it shall order that such personj
be restored, in the contemplation of the law, to the|
status he occupied before such arrest or indictmentj
or information. No person as to whom such order hasj
been entered shall be held thereafter under anys
provision of any laws to be guilty of perjury oi
otherwise giving a false statement by reason of his
failure to recite or acknowledge such arrest, oi
indictment, information, or trial, or response to any
inquiry made of him for any purpose. |
-20-
(c) The court shall also order that the said
misdemeanor conviction be expunged from the records
of the court, and direct all law enforcement agencies
bearing record of the same to expunge their records
of the conviction. The clerk shall forward a certified
copy of the order to the sheriff, chief of police, or
other arresting agency. The sheriff, chief or head of
such other arresting agency shall then transmit the
I copy of the order with a form supplied by the State
I Bureau of Investigation to the State Bureau of
I Investigation, and the State Bureau of Investigation
shall forward the order to the Federal Bureau of
Investigation. The cost of expunging such records shall
be taxed against the petitioner.
(d) The clerk of superior court in each county in
North Carolina shall, as soon as practicable after each
term of court in his county, file with the
Administrative Office of the Courts, the names of
those persons granted a discharge under the provisions
of this section, and the Administrative Office of the
Courts shall maintain a confidential file containing the
names of persons granted conditional discharges. The
information contained in such file shall be disclosed
only to judges of the General Court of Justice of North
CaroUna for the purpose of ascertaining whether any
person charged with an offense has been previously
granted a discharge. (1973, c. 47, s. 2; c. 748; 1975,
c. 650, s. 5; 1977, c. 642, s. 1; c. 699, ss. 1, 2; 1979,
c. 431, ss. 1, 2.)"
^'his statute, under State v. Bellar, supra., gives the court the
equisite authority to expunge records of the arrest and conviction
if persons who meet the requirements thereof. Since the statute
•perates as an exception to general principles concerning the
Iteration of accurate judicial records, it would appear, under the
•rdinary principles of statutory contruction, that the statute should
-e strictly construed, see generally , 12 Strong's North CaroHna Index
d, Statutes 5, 5.2 (1978). The statute is phrased throughout in
Ingular terms. If the statute is to be strictly construed, the rule
-21-
of G.S. 12-3(1) which allows the singular to import the plural could
not be appUed.
The intention of the General Assembly as ascertained from the
language of the session law, Wright v. Casualty & Fidelity Company,
270 N.C. 577, 155 S.E.2d 100 (1967), is controlling, 12 Strong's
,
North Carolina Index 3d, Statutes 5.1 (1978). In Session Laws 1973, i
Chapter 748, 1, which is the basic act from which current G.S. ,
15-223 is derived, we find the following aid to interpretation of
the section:
"Purpose of Act. The purpose of this act is to protect
the future of youthful offenders of the law. Once a
criminal record is created by conviction of a person,
said criminal record remains a part of his past for so
long as he may live. Many youths have only one small
encounter with the law. They go on to be excellent
citizens, raise good families, but are always hindered
by having a criminal conviction on their record. This
bill is not intended to excuse those who repeat their
wrongdoing, but to somehow pardon a youthful
oversight in an isolated occurrence."
The General Assembly's statement of purpose further articulates
legislative intent as evident from the section. The statute denies the
remedy to a person who has been convicted prior or subsequent)
to the conviction he desires to have expunged. To that end, we|
think that G.S. 15-223 would be characterized by our courts as
being remedial in character, and thus subject to a rule of liberal
rather than strict construction and interpretation, 3 Sutherland
Statutory Construction, Chapter 60, (Sands ed., 4th ed. 1974).
Furthermore, the statute provides a benefit to a juvenile offender,
which some courts have held to be remedial and subject to rules |
of hberal construction. In re Aline D., 14 Cal.3d 557, 121 Cal. Rptr.
j
816, 536 P.2d 65 (1975); Briones v. Juvenile Court for City and}
County of Denver, 534 P.2d 624 (Colo. 1975).
Further evidence of the remedial intent of the General Assembly
may be inferred from its enactment in the 1 979 session of Chapter
61. Chapter 61 of the 1979 Session Laws 1 (effective 20 February
1979) establishes a new section to be codified as G.S. 15-223.1.
-22-
Under that section, a person has not yet attained the age of 18
years, and who has not previously been convicted of any offense
other than a traffic violation may have expunged the record of his
arrest for any felony or misdemeanor offense if the charge is
dismissed or if he is acquitted. UnUke G.S. 15-223, there is no
limitation on the availability of the remedy under the new statute
to a single use. The General Assembly's mercy for the youthful
offender is therefore apparent.
The rules governing the disposition of multiple charges in a single
sentence are well established, see generally 4 Strong's North Carolina
Index 3d, Criminal Law 92, et seq. (1976). The joinder of offenses
for trial or disposition is addressed to the sound discretion of the
court, State v. Slade, 291 N.C. 275, 229 S.E.2d 92 (1976); State
V. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). The verdict
or plea of guilty to consoUdated charges authorizes the imposition
of separate sentences on each charge, 4 Strong's North Carolina
Index 3d, Criminal Law 137.1 (1976), but the sentence cannot
exceed the maximum authorized by statute. Id. Where multiple
charges are consoUdated for sentence, a sentence in excess of the
maximum authorized for a single offense will not be sustained on
the theory of an intent to impose consecutive sentences, State v.
Austin, 241 N.C. 548, 85 S.E.2d 924 (1955). Therefore, if multiple
misdemeanor charges against a youthful offender are consolidated
for judgment and sentence, the sentence imposed cannot exceed the
authorized sentence for conviction of a single offense. The
sentencing judge, by consolidating the charges for judgment has
indicated his intent to treat the charges as a single offense for the
ipurpose of sentencing, even though the judgment may recite pleas
of guilty to or conviction of more than a single offense.
Your inquiry is directed to a case in which three charges were
consoUdated for disposition and the sentence imposed within the
statutory Umit for a single offense. In those circumstances and in
the Ught of the purposes of G.S. 15-223, we think the convictions
should be treated as a single misdemeanor for the purpose of
expungment. It would be ironic and unjust that one youthful
defendant could plead guilty to a single charge, have two other
:jharges dismissed, receive sentence and be entitled to expungement
while a second youthful offender who pleads guilty to three charges
and receives an identical sentence would be ineligible for the remedy.
-23-
The State Bureau of Investigation's Identification and Records
Sections receive many orders to expunge their records, as provided
for by the statute. We are, therefore, aware that many judges of
the State do order expungement in the circumstances which you
describe. In our opinion, the discretionary nature of consohdation
and the fact that the remedy of expungement is available only once
to a youthful offender neither previously nor subsequently convicted
provide adequate safeguards against abuse. We offer this
interpretation in the hope that practice may be more uniform
throughout the State and that the General Assembly's remedial
purpose may be carried out.
Rufus L. Edmisten, Attorney General
David S. Crump
Special Deputy Attorney General
Special Assistant to the Attorney General
28 August 1979
Subject: Reciprocal Enforcement of Support i
Action; Child Support; Registration of!
Foreign Support Orders
Requested by:
Question
:
Mr. Larry T. Black
District Court Judge
26 Judicial District
Do the registration provisions of the North i
Carohna Uniform Reciprocal Enforcements
of Support Act (G.S. 52A-25 through 30))'
apply so as to allow enforcement in North t
Carolina of foreign state support orders
entered prior to October 1, 1975?
Conclusion: Yes.
G.S. Chapter 52A, the Uniform Reciprocal Enforcement of Support
Act (hereinafter URESA) was first enacted in North Carolina la#
in 1951. In 1975 the act was rewritten in its entirety to substantially
-24-
conform to the 1968 revisions of URESA by the National
Conference of Commissioners on Uniform State Laws which include
a new procedure for the registration and enforcement of foreign
support orders. Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d
633 (1977). The new registration provisions are codified as G.S.
52A-25 through 30.
The URESA, including the registration procedure established
thereunder, creates no new substantive rights between the party
seeking support and the party from whom support is being sought.
The act merely sets up new procedural mechanisms whereby through
substantially uniform legislation establishing reciprocity states have
i created a new and more efficient way of enforcing support
lobhgations. 2 Lee, N.C. Family Law 3d §169 (1963). By enacting
substantially similar Uniform Reciprocal Enforcement of Support
Acts, all fifty states have sought to avoid support enforcement
problems previously experienced because of the inapplicability of
the full faith and credit clause of Article IV, Section 1 of the United
States Constitution to foreign state support orders deemed to be
ijnon-final. Brockelbank and Infausto, Interstate Enforcement of
Wamily Support, pp. 77-90 (2d ed. 1971).
The bill (Senate Bill 357) passed in 1975 revising the Uniform
Reciprocal Enforcement of Support Act is entitled:
"AN ACT TO REWRITE CHAPTER 52A OF THE
GENERAL STATUTES ENTITLED 'UNIFORM
RECIPROCAL ENFORCEMENT OF SUPPORT
ACT'." N.C. Sess. Laws 1975 -c. 656, s.l.
After completely rewriting the text of the Uniform Reciprocal
Enforcement of Support Act in Section 1 of the bill, the General
Assembly went on in Section 2 of the bill to state as follows:
"This act shall not apply to pending litigation
including proceedings which have been initiated in a
state other than North Carolina." N.C. Sess. Laws
1975 c. 656 S.2.
3!
pThe foregoing statement by the General Assembly in Section 2 of
jfhe bill relating to the applicability of the rewritten URESA raises
-25-
I
the present issue as to whether the newly estabHshed registration
provisions may be used to obtain interstate enforcement of a support
order of another state predating the effective date (October 1 , 1 975)
of Senate Bill 357.
In an analogous case the North Carolina Supreme Court has
addressed the effect of applicability language virtually identical to
the language used in Section 2 of Senate Bill 357. Spencer v.
McDowell Motor Company, 236 N.C. 239, 72 S.E.2d 598 (1952).
In the Spencer case the defendant Motor Company was contesting
the effect of the General Assembly's enactment of an evidentiary
statute after the point in time when the plaintiff's cause of action
arose. In addressing the defendant's allegation that the statute should
not be retroactively applied because of language of non-applicability
to "pending litigation", the court in relevant part states:
"While appellant motor company does not contend
that the Legislature is without authority to change the
rules of evidence ..., it contends that under rules of
interpretation the Act should not be given retroactive
effect, that is, as to existing causes of act, ... It seems
clear, however, from the language of the Act that the
Legislature intended that on and after 1 July 1951,
the only hmitation upon the applicability of the Act
is that it shall not apply to pending litigation, that
is, litigation then pending. It is so expressly provided.
An action is pending from the time it is commenced
until its final determination. And a civil action is
commenced by the issuance of a summons. ...
Moreover, the maxim expressio unius est exclusio
alterius, that is, that the expression of one thing is
the exclusion of another applies. From the fact that
the Legislature expressly provided that the provisions
of the Act shall not apply to pending Htigation, it may
be imphed that it should apply in all other cases.
...(L)aw5 which change the rules of evidence relate to I
the remedy only, and are at all times subject to \
modification and control by the Legislature, and ... \
-26-
changes thus made may be made applicable to existing
causes of action. ... Retrospective laws would certainly
be in violation of the spirit of the Constitution if they
destroyed or impaired vested right, but ... one can have
no vested right in a rule of evidence when he could
have no such right in the remedy, and ... there is no
such thing as a vested right in any particular remedy.
"
Spencer v. McDowell Motor Company, supra, 236 N.C.
at 246. (quotations and citations omitted) (emphasis
supplied)
I Similarly, the Act in question, N.C. Sess. Laws 1975 c. 656, and
j specifically the registration provisions codified as G.S. 52A-26
ithrough 30 are purely remedies. Referring to the URESA as a
whole G.S. 52A-4 reads:
"These remedies herein are in addition to and not a
substitution for any other remedies."
:In addition to the foregoing provision concerning remedies, the
section of the Act immediately preceding the registration provisions
states:
"If the duty of support is based on a foreign support
order, the obligee has the additional remedies provided
in the following sections". G.S. 52A-25. (emphasis
supplied)
Accordingly, the URESA as rewritten in 1975 does not affect any
vested right of a potential defendant from whom support is sought.
A defendant has no vested right in limiting an obligee to pre-URESA
remedies for interstate enforcement of support duties, to wit:
following a defendant obligor into a foreign state forum for purposes
of lawsuit de novo there or after reducing any preexisting initiating
state support order to final judgment, pursuing the defendant obligor
to a foreign state for suit on the final judgment obtained under
the doctrine of full faith and credit.
A plaintiff's cause of action for failure to support, including that
under the URESA, is based on attempted enforcement of a duty
of support. Under the URESA this term is defined as follows:
-27-
i
'"Duty of Support' means a duty of support whether
imposed or imposable by law or by order, decree, or
judgment of any court whether interlocutory or final
or whether incidental to an action for divorce,
separation, separate maintenance, or otherwise and
includes the duty to pay arrearages of support past
due and unpaid". G.S. 52A-3(2). (emphc^is supplied)
Oftentimes, the obligee in an interstate support case has previously
obtained a support order in a state from which an obligor has fled.
Under the terminology of the URESA, when the registration remedy
^
(52A-25 through 30) is attempted to be invoked, the state in which
the order was initially obtained would be termed the "rendering
state". G.S. 52A-3(11).
Whenever a support order is outstanding in the state from which;
the obligor has fled, the obligee could in the alternative choose to
use the traditional URESA remedy. (G.S. 52A-1 through 52A-24).
2 Lee N.C. Family Law 3d §169 nn. 264-5(1963); Brockelbank
and Infausto, Interstate Enforcement of Family Support, p. 80 nn.;
189-190 (2nd ed. 1971). When proceeding under the traditional
URESA remedy, the state in which a support order was originally
obtained is termed the "initiating state". G.S. 52A-3(4).
Whenever there is a preexisting support order in a "rendering state"
or "initiating state", it may be argued there exists "pending
litigation" or "proceedings which have been initiated in a state other,
than North CaroUna" as the terms are used in N.C. Sess. Laws 1975
c. 656 S.2. In support matters htigation is always pending for the
cause of action remains in the continuing jurisdiction of the court!
and motions may always be made therein. Barber v. Barber, 216
N.C. 232, 4 S.E.2d 447 (1939).
Nevertheless, a preexisting order in another state cannot be logicallyj
interpreted to be "pending litigation" or "proceedings initiated in,
another state" so as to bar use of the registration procedures for
foreign state support orders obtained prior to October 1, 1975, the.
effective date of the legislation. Because Section 2 of Senate Bill
357 says "(t)his act shall not apply to pending litigation including
proceedings which have been instituted in a state other than Northi
-28- !
Carolina", such an interpretation would arguably make the totally
rewritten URESA mechanism, be it the traditional method or the
new registration method, unavailable to any obligee having, as is
often the case, a support order outstanding in an "initiating state"
or "rendering state" predating October 1, 1975.
A statutory construction of this nature would operate to defeat the
objects of the URESA and "must be avoided if that can be
reasonably done without violence to the legislative language". 12
N.C. Index 3d, Statutes §5.9. The URESA contains two sections
relating to the objects of this Legislative Act which state:
"The purposes of this Chapter are to improve and
extend by reciprocal legislation the enforcement of
duties of support and to make uniform the law with
respect thereto."
G.S. 52A-2; and
"This Chapter shall be so interpreted and construed
and as to effectuate its general purpose to make
uniform the law of those states having a substantially
similar act."
G.S. 52A-32.
Consequently, it would be an illogical construction of Section 2
of Sentate Bill 357, rewriting the URESA in its entirety, for the
words "pending litigation" or "proceedings initiated in another
state" to include a preexisting order of another state used as a basis
to estabHsh the duty of support under G.S. 52A-3(2) and a
concomitant basis for invoking either- the traditional or registration
remedies of the Act. If the construction was otherwise, all URESA
remedies would arguably be barred for all cases involving a
pre-October 1, 1975, order entered in a state other than North
Carolina while URESA cases for the same time frame but based
on the mere existence of a legal relationship hke parent/child would
be proper. This alternative construction steadfastly holding to a
literal interpretation of the statute would lead to an anomalous,
absurd result both unintended by the General Assembly and properly
avoidable. In general see 12 N.C. Index 3d Statutes § 5.9 (1978).
Moreover, there is yet another reason why the language in question
was not intended to encompass preexisting orders of other states;
-29-
that is, the North Carohna "act" as rewritten obviously could not
"apply" to pure orders of foreign states. With the exception of
proceedings or pending litigation instituted under a foreign URESA
with a view towards obtaining a support order in North Carohna
through the procedures established under the North Carolina
URESA, pending foreign proceedings or litigation are beyond the
jurisdiction of our legislative enactments. Therefore, the words in
question must logicahy refer to "pending URESA Htigation" or
URESA proceedings which have been initiated in a state other than
North Carohna."
i
For these reasons it is the opinion of this Office that the existence
of foreign state orders for support predating October 1, 1975, do
not bar the use of the URESA registration procedures (G.S. 52A-26
through 30) for purposes of registering and seeking enforcement of
such preexisting orders.
Rufus L. Edmisten, Attorney General
R. James Lore
Associate Attorney
29 August 1979
Subject:
Requested by:
Retirement; Local Disabihty Retirement
!
Plan; Longevity Pay Considered in
Computation.
Robert J. Robinson, City Attorney
Asheville
Question
:
Conclusion:
Should longevity pay be taken into
j
consideration in computing disability
|
payments to policemen retiring pursuant to \
provisions of the Asheville Pohcemen'sj
Pension and Disability Fund?
j
Yes.
Asheville policemen are members of the Asheville Policemen's
Pension and Disability Fund, pursuant to Chapter 188 of the 1977
-30-
Session Laws, amended by Chapter 429 of the 1 979 Session Laws.
The question has arisen whether longevity pay should be taken into
account in computing disability payments for policemen suffering
disability in the line of duty.
Section 3(a) requires the deduction of "five percent (5%) of the
monthly salary of every member of the policemen's fund" as a
mandatory contribution to the Asheville Pohcemen's Pension and
Disability Fund. The term "monthly salary" is not defined anywhere
in the Act. Service retirement benefits and benefits for disability
not incurred in the line of duty are computed according to a formula
based upon the member's total earnings in the last twenty years
of service for service retirement or since beginning service with the
i Asheville Police Department for Disabihty not incurred in the hne
j of duty. A member who is disabled while acting in the line of duty
or as a result of the performance of duties as a member of the
Asheville Police Department is entitled to "receive monthly a sum
equal to seventy percent (70%) of his monthly salary as then paid
by the City of Asheville ... ." Secfion 9(a), Chapter 188, 1977
payments shall be taken into consideration in computing seventy
percent (70%) of the monthly salary, or what constitutes the police
officer's monthly salary for purposes of computing the seventy
percent (70%) for disability retirement benefits.
I'Employees of the City of Asheville who have completed five or
more years of service are ehgible for longevity pay bonuses, at a
graduated rate according to the number of years of service.
Longevity pay bonuses are paid annually, during the second pay
period during the month of December. The "Longevity Pay Plan
Administration Guidehnes for Fiscal Year 1978-79" included a
statement that longevity pay bonuses are classified by the Internal
Revenue Service as part of an employee's normal income for the
current calendar year and that, as such, the bonuses were subject
to the normal deductions, including federal and state income tax,
.social security, and appHcable retirement and pension plans. In other
words, contributions to the Asheville Pohcemen's Pension and
Disability Fund have been deducted from these annual longevity
payments. The Guidehnes for administration of the longevity pay
plan for the fiscal year 1 978-79 include methods for computing the
bonus on a pro-rata basis for each month of service for employees
ion leave without pay during part of the fiscal year and for employees
-31-
who retired during the fiscal year. However, it appears that
contributions to the Asheville PoUcemen's Pension and Disabihty
Fund have not been deducted for longevity pay bonuses paid on
a pro-rata basis to employees who have retired or applied for
disability retirement on the basis of a disability incurred in the line
of duty or as a result of the performance of their duties even though
these pro-rata longevity pay bonuses have been paid for the period
during which these pohcemen were in active service.
Given all the facts and circumstances, it appears that a portion of
the longevity bonuses which represent one month's employment
should be included in the member's monthly salary" in order to
compute seventy percent (70%) of the monthly salary of a policeman
retiring on disability incurred in the line of duty or as a result of
performance of duties. Although contributions to the Asheville
Policemen's Pension and Disability Fund are not deducted from
longevity pay bonuses made after the employee ceases to work
because of disability, normally pension fund contributions are
deducted from longevity pay bonuses. It does not appear reasonable
to conclude that "monthly salary" includes longevity pay bonuses
for purposes of determining deductions from one's salary, but not
for purposes of computing seventy percent (70%) of the salary for
benefits. Barring specific statutory provisions to the contrary, funds
from which disabihty and pension fund contributions are deducted
should be included in the basis for computing a disability and
pension fund benefit. Therefore, it is our opinion that longevity
pay bonuses should be taken into consideration in computing
seventy percent (70%) of an Asheville policeman's salary for
purposes of determining monthly benefits for a pohce officer who
becomes disabled in the hne of duty or as a result of the performance
of duties as an Asheville pohce officer.
The same conclusion would not necessarily hold true for persons
retiring from the Asheville Pohcemen 's Pension and Disability Fund i
on a line of duty disabihty basis when the provisions as amended
in 1979 control. The 1979 amendments, in Chapter 429 of the
Session Laws, provide for a line of duty disability in the amount
of seventy percent (70%) of the member's "basic monthly salary
rate as then paid by the City of Asheville." The change in language
for hne of duty disabihty, with no change in the language directing
the deduction of five percent (5%) from the member's "monthly
-32-
salary," requires the conclusion that the basis upon which the line
of duty disability is figured will differ from the compensation from
which the mandatory five percent (5%) employee contribution is
deducted.
Rufus L. Edmisten, Attorney General
Norma S. Harrell
Assistant Attorney General
29 August 1979
Subject:
Requested by:
Question
:
Railroad Company; North Carolina
Railroad Company; Atlantic and North
Carohna Railroad Company; Acquisitions
and Dispositions of Real Property;
Governor and Council of State.
Mr. Joseph W. Grimsley, Secretary
Department of Administration
Do future land acquisitions or dispositions
planned by the North Carohna Railroad
Company and the Atlantic and North
Carolina Railroad Company require the
prior approval of the Governor and Council
of State?
Future dispositions of real property by
these companies must be approved by the
Governor and Council of State.
Acquisitions of real property by these
companies are not subject to the approval
of the Governor and Council of State
unless the acquisition constitutes an
encumbrance on the property of the
Railroad.
The North Carolina Railroad Company was incorporated by the
General Assembly of North Carohna as a private corporation in
-33-
Conclusion:
II
1849. Session Laws of North Carolina, 1849, Chapter 83. The
Atlantic and North Carolina Railroad Company was incorporated
by the General Assembly of North Carohna as a private corporation
in 1852. Session Laws of North Carohna, 1852, Chapter 136. The
State of North Carolina is the majority stockholder in each of the
corporations. The State owns 75.8 percent of the stock in the North
Carolina Railroad Company. It owns 73.5 percent of the stock in
the atlantic and North Carolina Railroad Company.
G.S. 124-5 reads as follows:
"no corporation or company in which the State has
or owns any stock or any interest shall sell, lease
mortgage, or otherwise encumber its franchise,
right-of-way, or other property, except by and with
the approval and consent of the Governor and Council
of State."
This statute, if given its full Uteral affect, would apply to a
disposition of real property by any corporation in which the State
owns a single share of stock. Such a construction might give rise
to a question of constitutionality. However, it is unnecessary to
address that question at this time.
The State of North Carolina is the majority stockholder in each
of the Railroad companies. There is a presumption in favor of the
constitutionahty of a statute. Strong's N. C. Index 3d, Statutes,
§4.1. We are of the opinion that this statute would be constitutional
as applied to the North Carolina Railroad Company and the Atlantic
and North Carohna Railroad Company. Therefore, we conclude that
future dispositions of real property by these companies require the
approval of the Governor and Council of State.
G.S. 124-5 appUes only to dispositions of property. It does not apply
to acquisitions of property except when the acquisition would
constitute an encumbrance on the property of the Railroad. We are
unable to find any other statutory provision which requires approval
by the Governor and Council of State for acquisition of property
by these companies. Since these companies are private corporations,
the provisions of Chapter 146 of the General Statutes relating to
acquisitions of real property by State agencies would not apply.
-34-
4 September 1979
Subject:
Requested by:
Questions:
Conclusion:
Rufus L. Edmisten, Attorney General
Roy A. Giles, Jr.
Assistant Attorney General
Courts; Costs; Witnesses; Worthless Checks;
G.S. 7A-314; G.S. 14-107(5) as Enacted by
Chapter 837, Session Laws of 1979.
Honorable John S. Gardner
Chief District Court Judge
704 W. 27th St.
Lumberton, N. C. 28358
1. In a worthless check prosecution
pursuant to G.S. 14-107 where the
defendant pays the worthless check and
court costs to the magistrate before the
date of trial, and the prosecuting witness
is not present before the magistrate, should
the prosecuting witness be paid the witness
fee under G.S. 14-107(5)? Should the fee
be included in the bill of cost?
2. If on the date of trial, the defendant
pleads guilty, and the prosecuting witness
is not present in court and does not testify,
would the prosecuting witness be entitled
to the witness fee under G.S. 14-107(5)
and should it be taxed as costs?
1 No.
No.
In its strict legal sense, the word "witness" means one who gives
evidence in a cause before the court. 97 CJS 350.
-35-
The right of a witness to compensation is purely statutory, and the
court's power to tax costs is entirely dependent upon statutory
authorization. State v. Johnston, 282 N.C. 1.
The right to tax costs did not exist at common law. Costs are penal
in nature and statutes relating to costs are strictly construed. City
of Charlotte v. McNeely, 281 N.C. 692.
In McNeely, supra, the Court held that a party who testified for
himself was not entitled to a witness fee.
The general rule seems to be that a witness must be in actual
attendance on the Court to be entitled to compensation, but he
need not be called to testify.
Likewise, the rule is that in order to tax the other party for
plaintiff's witness fees, the plaintiff's witnesses must be under
subpoena, and must be examined or tendered. Johnson, supra.
G.S. 7A-314 provides that a witness under subpoena, bound over
or recognized to testify shall be entitled to receive $5.00 per day
or fraction thereof, during his attendance. (Emphasis added)
Chapter 837, Session Laws of 1979, amended G.S. 14-107 by adding
subsection (5) to read:
"(5) In deciding to impose any sentence other than
an active prison sentence, the sentencing judge may
require, in accordance with the provisions of G.S.
15A-1343, restitution to the victim for the amount
of the check or draft and each prosecuting witness
(whether or not under subpoena) shall be entitled to
a witness fee as provided by G.S. 7A-314, which shall
be taxed as part of the cost and assessed to the
defendant."
Thus, we conclude that in those cases where the prosecuting witness
is entitled to a witness fee, the prosecuting witness must be in
attendance upon the Court before the witness fee can be taxed as
part of the costs.
-36-
G.S. 14-107(5) is an exception to the requirement that the witness
must be under subpoena, but actual attendance on the Court is
required.
The compensation to a witness is not to pay him for testifying,
but simply to provide partial reimbursement for the time and
expense incurred from being in attendance upon the Court.
Under the facts presented, the prosecuting witness was not in
attendance upon the court and witness fee authorized by G.S.
14-107(5) should not be taxed as costs.
Rufus L. Edmisten, Attorney General
James F. Bullock
Senior Deputy Attorney General
13 September 1979
Subject
:
Requested by:
Question:
Conclusion:
Constitution; U.S. Constitution; First
Amendment Right to Association;
Municipal Employees; Unions; Supervisory
Personnel Membership in Union
Representing Employees.
E. Murray Tate, Jr., Esquire
City Attorney
Hickory, North Carolina
May a city terminate the employment of
a Fire Department Officer with supervisory
duties solely on account of his membership
in a labor union which counts
non-supervisory fire department personnel
among its members?
A city has a legitimate interest in
maintaining a disciplined and efficient fire
department. That interest is significantly
compromised by the conflicting loyalties
-37-
which unavoidably arise when fire
\
department supervisors join unions which ^
represent fire department employees.
Therefore, the city may legally prohibit i
supervisory personnel from joining unions i
which include in their membership
non-supervisory fire department !
employees. '
It has long since been decided that the freedom of association
attendant to and protected by the First and Fourteenth i
Amendments of the United States Constitution encompasses i
economic associations such as labor unions, Thomas v. Collins, 323 i
U.S. 516 (1945); Atkins v. City of Charlotte, 296 F. Supp. 1078
(W.D.N.C. 1969). Moreover, one may no longer seriously question
whether public employees have the same associational rights as their
privately employed counterparts, Elrod v. Bums, 427 U.S. 347
(1976); McLaughlin v. Tilendis 398 F.2d 287 (7 Cir. 1968);
AFSCME V. Woodward, 406 F.2d 137 (8 Cir. 1969). Nevertheless,
a public employee's First Amendment rights are not without Hmit.
See Civil Service Commission v. National Association of Letter \
Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413 U.S.
601 (1973); Elk Grove Fire Fighters Local No. 2340 v. Willis, 400 I
F. Supp. 1097 (N.D. 111. 1975), affirmed, 539 F.2d 714 (7 Cir.
1976); York County Fire Fighters Association, Local 2498 v. York ,
County, 589 F.2d 775 (4 Cir. 1978). i
Contemporary First Amendment analysis requires that the
constitutionality of a state action be determined only after the
public interest which the state's action purports to protect is
balanced against the individual interests of the person or persons i
affected by the action. Following this analysis, the United States
Supreme Court has held that a state may not limit First Amendment \
freedoms unless it first estabhshes: (1) the existence of a substantial,
j
legitimate state interest; (2) a direct relationship between that i
interest to be served and the proposed state action; and (3) the
|
action is the least drastic restriction of constitutional rights which \
will accomplish the state's purpose, Shelton v. Tucker, 364 U.S. i
479 (1960).
Several federal courts have recently had an occasion to apply this
three-prong test to state laws which prohibit publicly employed
-38-
supervisors from joining unions which include in their membership
employees under those supervisors' authority. In three cases deaUng
specifically with fire department personnel, these courts have upheld
a state's right to impose this limit upon their supervisors' union
membership.
In Elk Grove Fire Fighters Local Na 2340 v. Willis, supra. Local
2263, International Association of Fire Fighters v. City of Tupelo,
Mississippi, 439 F. Supp. 1224 (N.D. Miss., Ed 1977), and York
County Fire Fighters v. Yorktown, supra, federal courts were asked
to determine whether a municipahty might constitutionally prohibit
fire department supervisory personnel from joining unions which
counted non-supervisory fire department employees among its
members. Following the analysis and guidelines established by the
{ United States Supreme Court, these courts first found that the state
has a legitimate and substantial interest in the efficiency of its fire
departments.
I'The courts next found supervisor membership in unions to be
inimical to fire department efficiency, Elk Grove, supra, at 1100.
In reaching this conclusion, the judges reHed heavily upon the
congressional judgment embodied in Section 14(a) of the Labor
Management Relations Act (29 U.S.C. §169 (a)). That section of
the Taft-Hartley Amendments freed employers to discharge
supervisors who joined unions and reflected a legislative
determination that management, like labor, must be assured a
contingent of loyal agents. See Beasley v. Food Fair of North
Carolina, 416 U.S. 653 (1974). Though noting that the NLRA is
limited to private employers, the courts pointed out the parallels
between the private and public sector which make that
determination equally applicable to government employers.
Legislation aside, the courts found support for their holding in the
adversarial labor-managemetn relation. In times of labor unrest
(strikes, picketing, slowdowns) unionized supervisors' loyalties would
naturally be divided. Moreover, a more pervasive and potentially
more disruptive conflict of interest would necessarily arise out of
the cities' use of unionized officers to implement municipal policies
[which the union might oppose.
- -- -39-
"Practically the only circumstance in which a conflict
of interest would fail to arise would be if there were
no conflict between (city) officials and the firefighters
union over any aspect of working conditions, a rather
unlikely eventuality." Elk Grove, supra at 1103.
Thus the courts found that supervisor membership in unions would
retard department efficiency and interfere with a substantial state
interest.
Finally, the courts found the regulations in question to be the least
restrictive means of accomplishing the state's objectives. They
emphasized that the regulations did not prohibit supervisors from
joining any union, but only enjoined their membership in unions
which counted fire department employees among their members.
The courts held such a limitation to be clearly and precisely drawn
to achieve the state's legitimate objectives while avoiding undue
restriction of the supervisors' rights.
In sum it has been determined that the state's interest in maintaining \
an effective fire fighting force outweighs the supervisors' limited 1
interest in belonging to a union which represents their subordinates.
Therefore, a city may constitutionally prohibit a fire department I
officer from joining a labor union which includes non-supervisory
\
fire department employees among its members.
Rufus L. Edmisten, Attorney General I
Thomas J. Ziko '
Associate Attorney
14 September 1979
Subject
:
Requested by:
Licenses and Licensing; Occupational
Licensing Board; Travel Expense of
Members; Payment of Actual Travel
Expenses
Henry L. Bridges
State Auditor
^0-
Question: Does G.S. 138-7 authorize the payment of
actual travel expenses to members of
occupational licensing boards, over and
above the amounts provided in the
schedule in G.S. 138-6(a)(3) for officers
and employees of State departments?
Conclusion: No. G.S. 138-7 does not authorize the
reimbursement of excess travel expenses of
members of occupational licensing boards,
by reason of: (1) the express limitation of
G.S. 93B-5(b) restricting reimbursement of
occupational licensing board members to
amounts "not to exceed that authorized
under G.S. 138-6(a) (1)(2) and (3)" for
State employees; (2) the express restriction
of G.S. 93B-5(d) which provides that
"except as provided herein, board members
shall not be paid a salary or receive any
compensation for services rendered as
members of the board"; and (3) the
absence of any express exception in G.S.
138-7 to G.S. 93B-5 as was made to G.S.
138-5 and G.S. 138-6.
iG.S. 93B-5 provides for compensation exclusively for members of
occupational licensing boards. Subsection (b) provides for
reimbursement of travel expenses "in an amount not to exceed that
authorized under G.S. 138-6(a)(l)(2) and (3) for officers and
employees of State departments". Subsection (d) provides: "except
as provided herein board members shall not be paid a salary or
receive any additional compensation for services rendered as
members of the board.
"
|G.S. 138-6(a) provides for travel allowances for State officers and
employees of State departments, institutions and agencies which
operate from funds deposited with the State Treasurer. Subsection
(3) provides for "in lieu of actual expenses incurred for subsistence,
payment of $31.00 per day when traveling in State or $39.00 per
day when traveling out-of-state." It further provides for proration
of subsistence payment when travel involves less than a 24 hour
-41-
period in accordance with regulations promulgated by the Director
of the Budget.
G.S. 138-7 as rewritten by the 1979 General Assembly provides that
"expenditures in excess of the maximum amount set forth in G.S.
138-5 and G.S. 138-6 for travel and subsistence may be reimbursed
if the prior approval of the department head is obtained." The
Budget Director is required to establish and promulgate regulations
under which "actual expense in excess of travel and subsistence
allowance and convention registration fees as prescribed in G.S.
138-5 and G.S. 138-6 may be authorized by department heads for
hotel, meals and registration." (Chapter 838, Section 17, 1979
Session Laws).
G.S. 138-5 provides for compensation for all boards and
commissions, (excluding occupational licensing boards), which
operate from funds deposited with the State Treasurer. Subsection
(2) provides for the payment of subsistence while traveling at the
rate of $15.00 per day or $35.00 per day when away over-night.
The language of G.S. 93B-5 is clear and does not require
interpretation. G.S. 93B-5 deals exclusively with the compensation
of occupational Hcensing board members and controls over any other
statutes having general application. The language used expressly
Umits subsistence of occupational licensing board members to
amounts not to exceed that authorized by G.S. 138-6(a)(3). By
reference, an express limitation of $31.00 per day for in-state travel
and $39.00 per day out-of-state is placed on the amount of )
subsistence to be reimbursed, subject to proration according to
regulation promulgated by the director of the budget for periods
j
of travel less than a twenty-four hour period. G.S. 93B-5 further i
prohibits the payment of any additional compensation for services
except as provided by G.S. 93B-5.
G.S. 138-7 expressly provides for exceptions to G.S. 138-5 and G.S.
138-6 and authorizes reimbursement for actual expenses in excess
of travel and subsistence as "prescribed by G.S. 138-5 and G.S.
138-6." G.S. 138-5 and G.S. 138-6 prescribe compensation for
members of State boards and commissions excluding occupational
licensing boards and for officers and employees of State agencies,
which operate from funds deposited with the State Treasurer. G.S.
-42-
138-7 does not provide an exception to the statute authorizing
compensation to occupational licensing board members (G.S. 93B-5)
as it does to other statutes authorizing compensation for members
of boards and commissions excluding occupational Ucensing boards
I
(G.S. 138-5) and to State officers and employees (G.S. 138-6). Where
I express exceptions are made, the legal presumption is that the
Legislature did not intend to save other cases from the operation
lof the statute. 50 Am. Jur. Statutes §434.
A review of the history of the statutes providing for reimbursement
for travel expenses supports the conclusion that G.S. 138-7 has no
! appHcation to the reimbursement of travel expenses for occupational
'licensing board members. The statute (G.S. 93B-5) dealing
exclusively with occupational licensing boards was passed and
i codified in 1957. In 1961, the General Assembly enacted and
codified G.S. 138-5, G.S. 138-6 and G.S. 138-7 (Chapter 833,
Sections 5, 6 and 6.1). The provisions were basically the same as
had been previously provided in the 1957 and 1959 Budget
Appropriations Acts with two exceptions. G.S. 138-5 and G.S. 138-6
as now codified only apply to boards and commissions and State
departments and agencies "which operate from funds deposited with
the State Treasurer". The other exception is that previously no
excess payments had been authorized and a specific provision was
made for reimbursement for excess travel expenses incurred over
the amounts in the schedule which was codified as G.S. 138-7.
i
G.S. 138-7 expressly provides exceptions to G.S. 138-5 and G.S.
138-6" and requires the Director of the Budget to promulgate
regulations under which actual expenses in excess of those
''prescribed by G.S. 138-5 and G.S. 138-6 may be reimbursed. We
have considered the 1979 amendment. The 1979 amendment to G.S.
138-7: (1) reversed the sequence of the two sentences in that section;
(2) eliminated the requirement for approval of the Advisory Budget
Commission for the promulgation of the rules and regulations; and
(3) provided for prior approval of the department head for
reimbursement of travel and subsistence in heu of the prior approval
of the Director of the Budget. We do not find that the rewrite
of G.S. 138-7 by the 1979 General Assembly extended the
exceptions to the statute providing compensation to occupational
licensing board members or to agencies which operate from funds
iwhich are not deposited with the State Treasurer.
-43-
For the foregoing reasons, this Office is of the opinion that G.S.
138-7 does not authorize the reimbursement of occupational
licensing board members for subsistence expenses incurred in
connection with travel in excess of the rates specified in G.S.
138-6(a)(3).
Rufus L. Edmisten, Attorney General
Eugene A. Smith
Special Deputy Attorney General
17 September 1979
Subject:
Requested by:
Questions:
Lotteries; Bingo; Raffles; High School
Booster's Club; Five-Hundred Dollars t
($500) Limitation; Merchandise
Mr. R. Michael Jones
Lucas, Rand, Rose, Meyer, Jones & Orcutt,
P.A.
Counsel for the Wilson County School
System
1. May the local high school booster's
club legally sponsor a raffle which offers
merchandise as a prize or must any prize
be in the form of cash?
2. If an exempt organization may offer
merchandise as well as cash prizes in the
conduct of a raffle, does the five hundred
dollars ($500) limitation apply to prizes in
the form of merchandise?
Conclusions: 1. Yes. An exempt organization may
legally sponsor a raffle which offers
merchandise as a prize; the prize need not
be in the form of cash.
2. No. Only a cash prize is limited in
the amount of five hundred dollars ($500).
-44-
Subsection (g) of G.S. 14-292.1 deals with the limitations on the
amount of cash prizes and the value of merchandise prizes to be
offered or paid in bingo games and raffles. Subsection (g) reads as
follows:
"(g) The maximum prize in cash or merchandise that
may be offered or paid for any one game of bingo
is five hundred dollars ($500.00). The maximum
aggregate amount of prizes, in cash andIor
merchandise, that may be offered or paid at any one
session of bingo is one thousand five hundred dollars
($1,500). Provided, however, that if an exempt
organization holds only one session of bingo during
a calendar week, the maximum aggregate amount of
prizes, in cash andlor merchandise, that may be
offered or paid at any one session is two thousand
five hundred dollars ($2,500). The maximum cash
prize that may be offered or paid for any one raffle
is five hundred dollars ($500.00)." (Emphasis added)
Each of the above limitations on prizes for both raffles and bingo
games are very specific. These specific limitations are hmitations on
the general exemption from North CaroHna lottery laws (Article 37
I
of Chapter 14 of the General Statutes) for exempt organizations
'to operate and sponsor bingo games and raffles. The clear and
definite use of the terms "cash" and "merchandise" in the three
sentences in subsection (g) relating to bingo games and the term
"cash" in the last sentence of subsection (g) relating to raffles leads
jto the conclusion that the legislature- clearly intended to make no
ispecific limitation in regards to merchandise prizes for raffles.
i
ITherefore, provided the exempt organization meets all other
requirements of G.S. 14-292.1, merchandise may be offered or paid
as prizes for a raffle and there is no limitation as to the value of
[such merchandise prizes.
Rufus L. Edmisten, Attorney General
! Acie L. Ward
Assistant Attorney General
-45-
3 October 1979
Subject: Motor Vehicles; Size of Vehicles and Loads
Requested by: Mr. Randy Jones
North Carohna Department of Natural
Resources & Community Development
Division of Environmental Management
Question: Does G.S. 20-1 16(g) apply to a basically
"unloaded" truck that is depositing
material on the road?
Conclusion: Yes.
G.S. 20-1 16(g) reads in relevant part:
"(g) No vehicle shall be driven or moved on any
highway unless such vehicles is so constructed or
loaded as to prevent any of its load from dropping,
sifting, leaking, or otherwise escaping therefrom,
except that sand may be dropped for the purpose of
securing traction, or water or other substance may be
sprinkled on a roadway in cleaning or maintaining such
roadway. ..."
Any part of a load or what may remain as a prior load dropping,
,
sifting, leaking, or otherwise escaping from a vehicle other than sand
being dropped for the purpose of securing traction or water or other
substance being sprinkled on the roadway for the purpose of
maintaining the roadway would constitute a violation of this section.
The provision appearing in the last unnumbered paragraph of this
section relative to the transportation of poultry, livestock, silage or
other feed grain should be noted.
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
-46-
3 October 1979
Subject: Courts; Costs Allowed for Service of Civil
Process.
Requested by: Larry J. McGlothlin
Cumberland County Sheriff's Attorney
Question: Does G.S. 7A-3 11(a)(1) require civil
process fees to be assessed, collected and
remitted when the law enforcement officer
serves or attempts to serve civil process?
Conclusion: Yes.
Chapter 310, Session Laws of 1965, enacted G.S. 7A-311 and
provided the fee to be assessed and collected for each item of civil
|)rocess served or attempted to be served.
Iphapter 417, Session Laws of 1973 amended G.S. 7A-311(a)(r) by
jieleting the phrase "or attempted to be served".
{
Iphapter 1139, Session Laws of 1973 (2d Session) amended G.S.
i7A-311 (a)(1) by adding a new sentence: "If the process is served,
[t)r attempted to be served by the sheriff, the fee shall be remitted
(o the city rather than the county."
Chapter 801, Session Laws of 1979 rewrote G.S. 7A-31 1(a)(1) and
livided it into subsections (a) and (b). The first deals with the
imount of the fee to be assessed and (b) contains the language that
the process is served, or attempted to be served, the fee shall
e paid to the city if by a policeman and to the county if by the
heriff.
t appears clear from the history and language of G.S. 7A-31 1(a)(1),
hat the fee is paid when the process is served, or attempted to
)e served, by the law enforcement officer.
Rufus L. Edmisten, Attorney General
James F. Bullock
"^ Senior Deputy Attorney General
-47-
3 October 1979
Subject: Register of Deeds; Mortgages and Deeds of
Trust-Cancellation
Requested by: W. W. Speight
Pitt County Attorney
Question: Is the beneficiary of a deed of trust who
is also the payee or holder of the note
entitled to have the deed of trust cancelled
of record?
Conclusion: Yes.
G.S. §45-37(2) provides that a deed of trust may be cancelled of
record if the deed of trust and note or other instrument secured
thereby are exhibited to the Register of Deeds, with the endorsement
of payment and satisfaction by i
(a) The obligee
(b) The mortagee
(c) The trustee
(d) An assignee of the obhgee,
mortgagee, or trustee, or
(e) Any chartered banking institution.
As pointed out in a previous opinion, the beneficiary of a deed
of trust, as such, is not one of the persons authorized by the statute
to obtain cancellation. 48 N.C.A.G. 50 (1978). There was no
indication in the question upon which that opinion was based that
the beneficiary was an obligee, a bank or assignee thereof. Id, at[
p. 51. :
The question presented here clearly states that the beneficiary of;
the deed of trust is also the payee or holder of the underlying
indebtedness. In this case, the beneficiary is an obligee. See,,
BLACK'S LAW DICT. 1226 (Rev. 4th Ed. 1968). Therefore, thei
beneficiary, in his capacity as obligee may make the required
endorsements and obtain cancellation of record of the deed of trust, i
-48-
Rufus L. Edmisten, Attorney General
Lucien Capone, III
Associate Attorney General
October 1979
Subject
:
Requested by:
I
j
buestion:
Weapons; Carrying Concealed Weapons;
Railroad Police
Lawton Eure, Training Evaluator
Criminal Justice Training & Standards
Council
Can Railroad police carry concealed
weapons anywhere in the State when in the
performance of their official duties?
iConclusion: Yes.
I
[n relevent part, G.S. 14-269 reads as follows:
§14-269. Carrying concealed weapons -If anyone,
except when on his own premises, shall willfully and
intentionally carry concealed about his person any
bowie knife, dirk, dagger, sling shot, loaded cane,
brass, iron or metallic knuckles, razor, pistol, gun or
other deadly weapon of hke kind, he shall be guilty
of a misdemeanor punishable by a fine not to exceed
five hundred dollars ($500.00), imprisonment for not
more than six months, or both. This section shall not
apply to the following persons: ... officers of the
State, or of any county, city, or town, charged with
the execution of the laws of the State when acting
in the discharge of their official duties, ..."
-,
.S. 74A-2, in relevant part, reads as follows:
"§74A-2. Oath, powers, and bond of company police;
exceptions as to railroad police.-(a.) Every poUceman
-49-
so appointed shall, before entering upon the duties of |
his office, take and subscribe the usual oath. '
(b) Such pohcemen, while in the performance of the i
|
duties of their employment, shall severally possess all I
the powers of municipal and county police officers
to make arrests for both felonies and misdemeanors: [
(1) Upon property owned by or in the |
possession and control of their respective
employers; or ^
(2) Upon property owned by or in the i
possession and control of any person or persons
'
who shall have contracted with their employer
(
or employers to provide security for protective
|
services for such property; or
(3) Upon any other premises while in hot
pursuit of any person or persons for any offense
committed upon property vested in subdivisions
(1) and (2) above.
(d) The limitations on the power to make arrests
contained in subdivision (1), (2) (and) (3) of
subsection (b) shall not be applicable to pohcemen
appointed for any railroad company. Policemen
appointed for railroad companies shall be required to
post a bond in the sum of five hundred dollars
($500.00) in lieu of the bond required by subsection
(c)."
G.S. 74A-3 reads:
"74A-3. Company police to wear badges-Such
policemen shall, when on duty, severally wear a shield
with the words 'Railway PoHce' or 'Company Pohce'
and the name of the corporation for which appointed
inscribed thereon, and this shield shall always be worn
-50-
'i
in plain view except when such police are employed
as detectives."
G.S. 74C-3(8)(b)(6) reads:
"Private protective services shall not mean:
(6) Company poHce or railroad police as defined in
Chapter 74A of the General Statutes of North
Carolina; ..."
In Tate v. R.R., 205 N.C. 51 (1933), the Court held:
"The weight of authority maintains the position that
special officers appointed by the State for poHce duty
at the expense of a railway company or other
corporation are prima facie public officers, ..."
In Assoc, of Licensed Detectives v. Morgan, Attorney General, 17
N.C. App. 701 (1973) the Court said:
"Private or special police are public officers, Tate v.
R.R., 205 N.C. 51, 169 S.E. 816 (1933), and
therefore, a proper subject of regulation by the State
in exercise of its police power."
It would appear that railroad pohce fall into one of two categories;
i.e., those hired for the purpose of security of railroad property,
and those who serve in the capacity of detectives. Those who serve
in the general capacity of security of property should comply with
the provisions of G.S. 74A-3 relative to the wearing of a shield with
the words "Railway Police" and the name of the company or
; corporation for which they are appointed. Therefore, if a weapon
is needed, concealment would serve no purpose, however, such does
not appear to be prohibited while on the railway's property. Railway
police employed as detectives are not required to wear a shield as
they are exempt from the requirements of G.S. 74A-3. Further,
I
being a pubUc officer, they are also exempt from the provisions
I of G.S. 14-269 while on duty. As to whether a railway detective
is on duty is simply a question of fact.
-51-
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
9 October 1979
Subject:
Requested by:
Question:
Conclusion:
Counties, Municipalities, Garnishment,
Child Welfare, Garnishment for
Enforcement of Child Support, N.C.G.S.
110-136.
Rufus C. Boutwell, Jr.
Assistant City Attorney
City of Durham
Does a city have immunity fromi
[
garnishment proceedings brought for child
support under N.C.G.S. 110-136?
No. The legislative intent of Article 9,
Chapter 110 of the General Statutes is to
provide financial support for dependent
|
children and to provide an enforcement'
procedure against the parent responsible;
for providing support to such children.!
Thus, limited to the narrow area of child'
support under Article 9, it is the opinion
of this Office that the General Assembly:
did not intend to provide a remedy ofi
support for all children except those whosei
parents are employed by a governmental!
entity. Therefore, the city may be ai
garnishee for this hmited purpose. |
We find no North Carolina case dealing with the specific question
in the area of child support or construing G.S. 110-136 where a
governmental entity was the garnishee. The general rule in this State,
and apparently the majority rule, is that the State, or poUtical
subdivisions and agencies thereof, cannot be summoned as garnishees
-52-
in any action without statutory authority. Various reasons have been
given by the courts, including the reason that public pohcy demands
the exemption of the government and its agencies from Hability as
garnishees. In Swepson v. Turner, 16 N.C. 115, the North Carolina
Supreme Court adopted the pubhc policy view. So far as can be
ascertained, however, this case has not been cited or reHed upon
in this State since the opinion was written in 1877.
We do not depart from the general rule stated above, but we do
construe the language of G.S. 110-136, and the purpose set forth
in G.S. 110-128 as revealing a legislative intent to provide child
support for all dependent children and not to discriminate against
those children whose parents happen to be employed by the State
] or any of its agencies or poHtical subdivisions thereof.
I
The pertinent statute, G.S, 110-136, providing for garnishment for
enforcement of child-support obhgation, commences with the words
i "(n)otwithstanding any other provision of the law". These words
generally mean in spite of other provisions and that the statute
operates without obstruction from other statutes. This has been held
; to carry over to decisional law. Dover v. Dover, 15 C.A. 3d 675,
93 Cal. Rptr. 384; Words and Phrases, Vol. 28A.
Further, the garnishment statute under inquiry provides, in part,
that "(t)he garnishee is the person, firm, association, or corporation
i by whom the responsible parent is employed." G.S. 1 10-1 36(a). G.S.
12-3(b) defines the word "person" as extending to and applied
i to bodies politic and corporate, as well as individuals, unless the
* context clearly shows otherwise. A body politic is a State, county,
or municipal corporation. Student Baf Asso. v. Byrd, 293 N.C. at
!600. Thus, we construe the word "person" as used in G.S. 110-136
as embracing the State, a county or municipality.
The welfare of children has always been a paramount concern of
the courts and the State. The General Assembly, in recent years,
has expressed its concern in this area by the enactment of various
(legislation. It does not seem reasonable to think that it intended
i'to deny a valuable remedy for enforcement of the support obligation
ito some children simply because the responsible parent is an
employee of the State, county, city or other governmental entity.
-53-
We hold, therefore, that, by reason of the legislative intent and
pubhc policy expressed in G.S. 110-136, the statute is applicable
to the State, counties and municipal corporations, and they are not
immune from garnishment proceedings brought thereunder.
Rufus L. Edmisten, Attorney General
William F. Briley
Assistant Attorney General
10 October 1979
Subject:
Requested by:
Question:
Conclusion:
Social Services; Medicaid; Mental Health;
Hospitals
Dr. Sarah T. Morrow, Secretary
North Carohna Department of Human
Resources
Under the 1979 Appropriations Act, may
mental and specialty hospitals in North
Carohna be reimbursed by the Medicaid
\
program for an unUmited number of
administrative days?
Yes.
Under Section 23 of the 1979 Appropriations Act for the State |
of North Carohna (Chapter 838 of the 1979 Session Laws), the;,
Medicaid program will pay on behalf of its recipients allowable costs
for all hospital in-patient care rendered, subject to the exception
that payment for administrative days shall be limited to a maximum
of three days for any period of hospitalization. It is our
understanding that administrative days are days during which
alternative placement of a patient is planned and effected and for
which there is no medical necessity for hospital in-patient care. In
essence, these days constitute a grace period for the orderly
placement of a Medicaid patient into a lesser level of care or home
setting. The apparent intent of the General Assembly in enacting
the provision relating to administrative days was to provide a
-54-
financial disincentive to allowing Medicaid patients to linger in
hospitals when the medical necessity for hospitalization had expired.
By imposing the aforementioned limitation on Medicaid payment
for administrative days, it appears that it was the expectation of
the General Assembly that hospitals would act in their own best
financial interest by providing for the timely and appropriate
discharge of Medicaid patients who no longer require hospitaUzation.
iOn the other hand, the Medicaid payment basis for mental and
specialty hospital services under Section 23 of the 1979
Appropriations Act is not subject to any limitation on allowable
costs. Hence, the indisputable answer to the question posed is that
(under the 1 979 Appropriations Act for the State of North Carolina
mental and specialty hospitals may be reimbursed by the Medicaid
program for an unlimited number of administrative days. The
absence of any Umitation on Medicaid payment for administrative
days with respect to mental and specialty hospitals is probably
{founded on the rather substantial difficulty in making alternative
placement arrangements for mentally and physically handicapped
patients.
It should be noted that this Opinion addresses a narrow question
relating exclusively to the State Appropriations Act. We have neither
JDeen asked for nor offer our opinion on whether the difference
in payment basis between regular hospital in-patient care and mental
;ind specialty hospital care may conflict with federal law or
regulations or constitutional mandates.
Rufus L. Edmisten, Attorney General
William Woodward Webb
Special Deputy Attorney General
10 October 1979
subject: Mental Health, Area Mental Health, Mental
Retardation and Substance Abuse
Authorities; marking of motor vehicles
_ owned by area authorities.
-55-
Requested by:
Question:
Conclusion:
Sarah T. Morrow, M.D., M.P.H.
Secretary
Department of Human Resources
Does G.S. 14-250 requiring certain publicly
owned vehicles to be marked apply to
vehicles owned by an area mental health,
mental retardation and substance abuse
authority?
No. '
As pertaining to this inquiry, G.S. 14-250 provides as follows:
"It shall be the duty of the executive head of every
department of the State government, and of any
county, or of any institution or agency of the State,
to have painted on every motor vehicle owned by the
State, or by any county, or by any institution or
agency of the State, a statement that such car belongs
to the State or to some county, or institution or
agency of the State."
By statutory definition, an area mental health, mental retardationi
and substance abuse authority is a local political subdivision of the
State. (G.S. 122-35.36(1)). Title to the type of personal property
described in the present query is held by the area authority. (G.S.
122-35.53).
Prior opinions of the Attorney General have been consonant with
these statutory provisions (or their predecessors) and have been
based upon the premise that an area authority is a separate entity
from the State and from the county. See, 47 N.C.A.G. 8 (1977);
44 N.C.A.G. 185 (1975); 45 N.C.A.G. 120 (1975); 42 N.C.A.G.!
120 (1972); 45 N.C.A.G. 70 (1975). As a result, an area mental
health, mental retardation and substance abuse authority does not
fall within the provisions of G.S. 14-250.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
-56-
10 October 1979
Subject:
Requested by:
Questions:
Conclusions:
Social Services; Mental Health; Conflict of
Interest; Payment of Public Assistance to
Persons in Rest Homes
W. W. Speight
County Attorney for Pitt County
1
.
May payment of public assistance be
made for the care of a person in a home
for the aged, family care home, or other
domicihary facihty which is owned or
operated in whole or in part by an
employee of a State Alcoholic
Rehabilitation Center?
2. May payment of pubhc assistance be
made for the care of a person in a home
for the aged, family care home, or other
domiciliary facility which is owned or
operated in whole or in part by a
corporation of which an employee of a
State Alcoholic Rehabilitation Center is an
officer or a shareholder?
3. May payment of pubhc assistance be
made for the care of a person in a home
for the aged; family care home, or other
domiciliary facility which is rented from an
employee of an area mental health, mental
retardation and substance abuse authority?
1.
2.
No.
No.
Yes.
IG.S. 108-65.2, as amended by 1979 Session Laws, Chapter 702,
effective May 30, 1979, provides as follows:
-57-
"108-65.2. Limitations on payments-No payment of public
assistance under this Part shall be made for the care of any person
in a home for the aged, family care home, or other domiciliary
facility which is owned or operated in whole or in part by any
of the following:
1. a member of the Social Services Commission,
of any county board of social services, or of any board
of county commissioners;
2. an official or employee of the Department of
Human Resources or of any county department of
social services;
3. a spouse of a person designated in subdivisions
(1) and (2)."
The State Alcohohc RehabiUtation Centers are set up by the
Department of Human Resources and are an integral part of thatj
department. See G.S. 122-7.1. Since the chnical director is an
employee of the Department of Human Resources, the proscriptions:
of G.S. 108-65.2 apply to any home of the type described therein i
which is owned by that employee. Similarly, these prohibitions!
would also seem to apply to situations wherein an employee of an
Alcohohc Rehabilitation Center is an officer or a shareholder of
a corporation which owns or operates, in whole or in part, one
of these types of homes. That conclusion has been reached with
regard to the interpretation of the language of G.S. 14-234 and no
distinction can logically be made here. For prior opinions of this
Office in comparable situations, see 44 N.C.A.G. 128 1974), 42
N.C.A.G. 180 (1973); 42 N.C.A.G. 9 (1972); 40 N.C.A.G. 565
(1970); 40 N.C.A.G. 561 (1969).
On the other hand, an area mental health, mental retardation and
substance abuse authority is a local political subdivision of the State.
See G.S. 122-35.36(1)). As a result an employee of an area mentalj
health, mental retardation and substance abuse authority is not an
employee or an official of the State or of any county. See G.S.
122-35.45(b); 47 N.C.A.G. 8 (1977); 45 N.C.A.G. 70 (1975). Thus
the provisions of G.S. 180-65.2 would be inapphcable to such an
employee.
-58-
12 October 1979
Subject:
Requested by:
Questions:
Ll
Conclusions:
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
Mental Health; Mental Hospitals; Requiring
Residents to Participate in Fire Drills
Sarah T. Morrow, M.D., M.P.H.
Secretary
Department of Human Resources
1. In a fire-drill situation at a State
mental hospital is the staff authorized to
physically remove a non-consenting patient
from his ward?
2. In such a situation would it make
any difference if the patient were on
voluntary or involuntary status?
3. If the answer to question (1) is yes,
what degree of force should be utiHzed in
removing the patient?
1 Yes.
No.
3. Only a reasonable degree of force
under existing circumstances should be
utilized in removing the patient.
jit appears that the Life-Safety Code and accreditation standards vital
' 'to the operation and funding of State mental hospitals require that
internal disaster, fire and evacuation drills shall be held at least
quarterly for each work shift of program personnel in each separate
-59-
patient-occupied building. These questions are prompted by the
refusal, on occasion, of some patients to get out of bed and leave
the ward during such a drill.
The patients involved include some who are involuntarily committed
to the hospital by court order, others who are voluntarily admitted
upon their own request, and juveniles or other incompetents who
are voluntarily admitted with court ordered approval. In all of these
situations, the State occupies the position of parens patriae regarding
these residents; as a result, the State is responsible for the patient's
safety, health and welfare. Certainly the evacuation of all residents,
including those reluctant to participate would be necessary in order
to truly evaluate the adequacy of evacuation procedures. Thus, the
ability to require participation in the basic drills described is a
fundamental necessity in order to enable the fulfillment of the
State's responsibilities-for the short range purpose of immediate
protection of the residents involved as well as for the long range
purpose of insuring the continued operation of the hospitals in order? \
to care for present and future mentally ill persons. No distinctionj;
should be made on this score as to the right to refuse to participate
by the voluntarily admitted patient or those patients present!
pursuant to a court order. In other words, the remedy available]
to a purely voluntary competent patient, should he so desire, would-be
a request for discharge within the time hmitations levied by G.S.
122-56.3, not absolution from compliance with reasonable
requirements of the hospital.
In order to secure evacuation, reasonable force may be utilized. As.
an addendum, though, it would seem that the employees securing!
compliance should be persons trained in the handling of mentally'
ill patients who have performed similar functions in insuring'
compliance with other reasonable hospital directives. On aj
cautionary note, it should be recognized that any foreseeable injuryj
to the patients which is caused by undue force could well leavej
the hospital, the State and the individual employee vulnerable tcl
litigation seeking damages. '
Rufus L. Edmisten, Attorney General
WilHam F. O'Connell
Special Deputy Attorney General
-60-
23 October 1979
Subject:
i Requested by:
Social Services; Confidentiality of Public
Assistance Records; G.S. 108-45
Dr. Sarah T. Morrow, Secretary
North Carolina Department of Human
Resources
iQuestion:
bonclusion
:
Is it lawful, under applicable State and
federal laws and regulations, for a county
department of social services to disclose
names and other information concerning
persons receiving public assistance to the
Evaluation Section of the North Carolina
Department of Human Resources or its
contractual agent in order that an
evaluation and report on the expenditure
of State funds for the homemaker/chore
services program may be done?
Yes.
It is our understanding that the General Assembly of North Carolina
specifically requested an evaluation and report by the Department
of Human Resources on the expenditure of State funds for the
homemaker/chore services program provided under Title XX of the
Social Security Act. The responsibility for making this evaluation
and report has been assigned to the Evaluation Section of the
Department of Human Resources. In order to discharge this
iresponsibihty, the Evaluation Section will require access to the
records of Title XX public assistance recipients within the county
departments of social services.
Pursuant to the provisions set forth in Section 2003(d)(1)(B) of
the Social Security Act (42 U.S.C. § 1397b(d)(l)(B)), the federal
regulations found at 45 C.F.R. 205.50, and G.S. 108^5(a), public
assistance records generally (and Title XX records in particular) are
enveloped with confidentiahty except for purposes directly
:onnected with the administration of the various programs of public
assistance. It is our interpretation of these provisions that county
-61-
departments of social services may legally release names and other i
information concerning persons receiving Title XX public assistance
that are contained in the records of the department since the purpose '
for acquiring this information is without a doubt directly connected
|
with the administration of a program of public assistance (i.e., Title
XX). Moreover, in view of our conclusion, there is no need for the
county department of social services to obtain the consent of the 3
recipient prior to the release of the information sought.
|
We reach the same conclusion should the Evaluation Section decide
to contract with another agency outside the Department of Human
Resources to conduct the actual evaluation provided the contract
j
contains a provision prohibiting disclosure of the information *
gathered to third parties. The purpose in collecting the information
remains the same irrespective of who does the collecting,
j
Additionally, with the contractual prohibition against disclosure, the
agency conducting the evaluation is subject to standards of t,
confidentiality comparable to those governing the county j
departments of social services. Accordingly, under the authority of]
the federal regulation found at 45 C.F.R. §205.50(a)(2)(ii), it would
j be lawful for the county departments of social services to release Ij
to the contractor information concerning individuals receiving Title 1^
XX public assistance.
24 October 1979
Subject:
Requested by:
Rufus L. Edmisten, Attorney General
William Woodward Webb
Special Deputy Attorney General
Administrative Px rio»^c.e.»dsuuruievso ^Avc^tv;,
^
Department of Administration; Office of
the Governor; Division of State Budget and
Management; Budget Manuel
Administrative Rules Review Committee of
the General Assembly
-62-
Questions: 1. Is the budget manual of the Division
of State Budget and Management required
I
to be filed with the Attorney General?
2. Is the budget manual of the Division
of State Budget and Management subject
to the adoption and amendment procedural
requirements of the Administrative
Procedures Act?
Conclusion: 1. Yes, except for those parts already
I
-' filed or which are not rules.
i 2. Yes, except for those parts already
filed or which are not rules.
|. G.S. 150A-58, in relevant part, reads as follows:
(b) As used in this Article, "rule" means every rule,
regulation, ordinance, standard, and amendment
thereto adopted by any agency and shall include rules
and regulations regarding substantive matters,
standards for products, procedural rules for complying
with statutory or regulatory authority or requirements
and executive orders of the Governor.
r.S. 150A-59, in relevant part, reads as follows:
Rules adopted by any agency on or after February 1
,
1976, shall be filed with the Attorney General. All
rules shall become effective 30 days after fiHng, unless
the agency shall certify the existence of good cause
for, and shall specify, an earlier or later effective date.
An eariier effective date shall not precede the date
of filing.
I North Carohna Administrative Code 2A .0103 reads as
?"ollows:
ll The budget manual sets forth policies and procedures
to be followed by state agencies in preparing,
-63-
monitoring and executing the state's budget. Copies
of the budget manual shall be provided to the various
departments of state government and are available for
public inspection at the division office.
History Note: Statutory Authority G.S. Chapter
143,
Article 1
;
Eff. February 1, 1976;
Readopted Eff. February 27, 1979.
G.S. 150A-63, in relevant part, reads as follows:
(c) If the Attorney General determines that
pubUcation of any rule would be impracticable, he
shall substitute a summary with specific reference to
the official rule on file in his office.
Chapter 150A, the Administrative Procedures Act, has two separate
and distinct definitions of "rule." The definition in Article 5.
Publication of Administrative Rules, is more inclusive than the rule
making definition in Article 2, Rule Making, Regulations exempt
from the rule making article are not exempt from the pubhcation
article unless the regulation is exempted by G.S. 150A-58(b)(l^).
G.S. 150A-59 states no rule, as defined in G.S. 150A-58, may j
become effective any eariier than the date of filing with the Attorney
General.
The budget manual is a compilation of rules and regulations
developed by the Division of State Budget and Management which
sets forth pohcies and procedures state agencies must follow in
preparing, monitoring and executing the state's budget. An
examination of the contents of the manual discloses that it consists
of (1) reprints of General Statutes, (2) reprints of other sections
of the Administrative Code, and (3) regulations not contained in
other sections of the code. This last category includes regulations
developed by the Division of State Budget and Management which
are necessary to provide more specific procedures for complying with
the requirements of the General Statutes and the Executive Orders
of the Governor. The last category also contains the portions of
the budget manual which have not been filed with the Attorney
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General. The rule on file, 1 N.C.A.C. 2A .0103, describes the budget
i manual and states it may be inspected in the division office. G.S.
1 150A-63(c) allows for a summary rule if the publication of a rule
'would be impracticable, but it requires the official rule must be
on file in the Attorney General's Office. Those portions of the
budget manual which are rules within the the meaning of G.S.
i 150A-58 and which have not previously been filed with the Attorney
i General must be filed with the Attorney General to be effective.
(2) In relevant part, G.S. 150A-9, reads as follows:
It is the intent of this Article to establish basic
minimum procedural requirements for the adoption,
amendment, or repeal of administrative rules ... No
rule hereafter adopted is vahd unless adopted in
substantial comphance with this article.
G.S. 150A-10, in relevant part, reads as follows:
As used in this Article, "rule" means each agency
regulation, standard or statement of general
applicabihty that implements or prescribes law or
poHcy, or describes the organization, procedure, or
practice requirements of any agency.
The term includes the amendment or repeal of a prior
rule but does not include the following:
(1) Statements concerning " only the internal
management of an agency and not affecting private
rights or procedures available to the pubhc;
(6) Interpretative rules and general statements of
policy of the agency.
G.S. 150A-12, in relevant part, reads as follows:
(f) No rule making hearing is required for the
adoption, amendment or repeal of a rule which solely
describes the organization of the agency or describes
forms or instructions used by an agency.
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G.S. 150A-14, in relevant part, reads as follows:
An agency may adopt, by reference in its rules and
without publishing the adopted matter in full, all or
any part of a code, standard or regulation which has
been adopted by any other agency of this State or
any agency of the United States or by a generally
recognized organization or association.
G.S. 150A-2, in relevant part, reads as follows:
(1) "Agency" means every ... department, division,
council, member of Council of State, or officer of the
State Government of the State of North Carolina... '
!
Article 2, Rule Making has a definition of "rule" which varies
substantially from that of Article 5. The definition in G.S. ISOA-IO!
determines which regulations are subject to the procedural
requirements of Article 2, which include notice of hearing and public^
hearing prior to adoption. The two exemptions cited above, G.S.
150A-10(1) and (6), may include some of the unfiled portions of!;
the budget manual. In applying the definition of "rule," the
exemption created by G.S. 150A-10(1) should be limited to those
regulations concerning the internal management of the Division of
State Budget and Management. Some guidance on the exemption
created by G.S. 150A-10(6) is provided by Professor Charles E.;
Daye in his 1975 article entitled "North Carolina's New
Administrative Procedures Act: An Interpretive Analysis," 53 N.C.
Law Review 833-923, (1975). At page 853, it states:
"Generally speaking, interpretative rules carry no
sanction, and if a sanction is involved, it is seen as
emanating from the statute ... It should be emphasized
that careful scrutiny of the substance of the rule in
question is critical, since the interpretive rule
exclusion, if not confined to proper boundaries, could
well subsume the rulemaking provisions."
Finally, two separate statutory sections may exempt certain of thai
regulations of the budget manual from rulemaking or publication
in full. G.S. 150A-12(f) exempts any regulations which describe
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"forms or instructions used by an agency." G.S. 150A-14 exempts
Tom publication in full any regulations adopted by another agency
bf the State which are adopted by reference. It should be noted
any regulations so adopted must be amended any time the
promulgating agency alters a regulation for the adopting agency to
maintain the same regulations or the promulgating agency.
'Each regulation in the budget manual must be individually examined
to determine (1) whether it is a rule within the meaning of G.S.
150A-10; (2) whether, although it is rule, it is exempted from the
rule making requirements by G.S. 150A-12(f); and (3) whether it
was adopted by reference and thereby exempt from pubhcation.
When the manual was developed, the Division of State Budget and
Management was a part of the Department of Administration. By
Executive Order 38, that division was transferred to the Office of
the Governor on September 10, 1979. Both the Governor's Office
and the Department of Administration are agencies within the
statutory definitions of "agency" m G.S. 150A-2(1) and G.S.
;150A-58(c) and are required to comply with Article 2, Rule Making,
and Article 5, Publication of Administrative Rules, to the same
extent as are other agencies not specifically exempted.
Rufus L. Edmisten, Attorney General
Daniel F. McLawhom
Assistant Attorney General
25 October 1979
Subject:
Requested by:
Mental Health, Area Mental Health, Mental
Retardation and Substance Abuse
Authorities; Use of proxy votes at Area
Mental Health, Mental Retardation and
substance abuse Board Meetings.
Mr. Mansfi